Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 5TH DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 CRL.MC NO. 303 OF 2022 PETITIONER/S: ABHILASH AGED 31 YEARS ABHILASH, S/O. ACHUTHAN, ILLATHVALAPPIL HOUSE, ANAKKARA P.O, PALAKKAD DISTRICT, PIN - 679551 BY ADVS. S.K.SAJU P.SHEENA RAJAN RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 REPRESENTING THE SHO OF POLICE, TIRUR POLICE STATION, MALAPPURAM , PIN - 682031 2 MUHAMMED ANZARI AGED 32 YEARS S/O. SHAMSUDHEEN, THANATH PARAMBIL HOUSE , PERINJILAM WEST, THRISSUR DISTRICT,PIN - 680681 OTHER PRESENT: ADV C S HRITHWIK -SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ZIYAD RAHMAN A.A., J ….................................... ….......................................................... Dated this the 5th day of August, 2022
ORDER
The petitioner is the accused in Crime No.742/2009 of Tirur Police Station, which was registered against the petitioner and others, for the offences punishable under Sections 143, 147, 148, 324 and r/w Section 149 of the Indian Penal Code.
2. The prosecution case is that on 26.08.2009, in
furtherance of the common intention, the accused persons formed into an unlawful assembly and attacked the defacto complainant, who is the 2 nd respondent herein and inflicted injuries to him. Annexure 1 is the FIR and Annexure 2 is the Final Report submitted by the police.
3. Initially, the Judicial First Class Magistrate Court- I, Tirur has taken cognizance of the said offence as C.C.No.991/2009 and in the trial followed, all the accused persons except the petitioner participated. Annexure 4 is the
judgment passed by the learned Magistrate, in which it was
found that the accused persons who faced the trial were not guilty, and accordingly, they were acquitted. The case against the petitioner has been split up and is now pending as C.C.No.20168/2013. This Crl.M.C is filed to quash all further proceedings in the Calender Case.
4. Heard, Sri. S.K.Saju, the learned counsel appearing for the petitioner, Sri. C.S. Hrithwik, the learned Public Prosecutor appearing for the State.
5. The main contention put forward by the learned counsel for the petitioner is that, consequent to the order of acquittal passed by the learned Magistrate in Annexure 4
judgment, the substratum of the case itself is lost. Hence further prosecution of the petitioner is unwarranted, and it is a futile exercise. Reliance was also placed on the principles laid down by the Full Bench of this Court in Moosa v. Sub Inspector of Police [2006(1) KLT 552].
6. On the other hand, the learned Public Prosecutor
opposed the aforesaid contention. It is pointed out that merely because of the reason that the other accused persons were acquitted, the petition cannot be quashed at the instance of the petitioner.
7. I have gone through the contents of Annexure 2 Final Report, Annexure A3 deposition of the defacto complainant and Annexure A4 judgment passed by the learned Magistrate. It is discernible that while being examined, the PW1/defacto
complainant deposed about the incident of assault committed against him. He categorically stated that, he could not identify any of the assailants. PW2 was another eyewitness, and he also turned hostile to the prosecution by denying having witnessed
the incident. The prosecution examined no other witnesses. Therefore, it is evident that the prosecution failed to adduce any evidence to substantiate the case against any accused persons. Consequently, I am of the view that this is a fit case in which the principle laid down by this Court in Moosa's case can be applied, as the substratum of the case is lost.
In such circumstances, this Crl.M.C is allowed, and Annexure 2 Final Report submitted in Crime No. 742/2009 of Tirur Police Station and all further proceedings pursuant thereto, including the proceedings in C.C.No.2168/2013, pending before the Judicial First Class Magistrate Court-I, Tirur, are hereby quashed.
Sd/- ZIYAD RAHMAN A.A., JUDGE Dxy APPENDIX OF CRL.MC 303/2022 PETITIONER ANNEXURES ANNEXURE1 CERTIFIED COPY OF THE FIR IN CRIME NO. ANNEXURE2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 742/2009 ALONG WITH MEMO OF EVIDENCE AND STATEMENT OF WITNESSES ANNEXURE3 CERTIFIED COPY OF THE DEPOSITION OF PW1 ANNEXURE4 CERTIFIED COPY OF THE JUDGMENT DATED 30.07.2013 IN CC NO. 991/2009