IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
CRL.MC NO. 3165 OF 2022
AGAINST LP 13/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II,HOSDRUG
PETITIONER/S:
JAFFER SADIQUE .K.M
AGED 26 YEARS
S/O ABDULRAHIMAN, KUNNIL(H)
KUNIYA,PERIYA VILLAGE,
KASARGOD DISTRICT
, PIN - 671316
BY ADVS.
K.REEHA KHADER
RESHMA R.NAIR
RESPONDENT/S:
STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM -
, PIN - 682031
OTHER PRESENT:
ADV. C. S. HRITHWIK -SR. PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl. M.C. No. 3165 of 2022 -2-
JUDGMENT
Dated this the 1st day of June, 2022 The petitioner is the 1st accused in Crime No. 652 of 2015 of Bekal Police Station which was registered for the offences punishable under Sections 341, 427, 308 read with 34 of the Indian Penal Code and also under Section 3(1) read with Section 181 of the Motor Vehicles Act.
2. The prosecution case is that on 08.10.2015 at 09:30 a.m., the petitioner along with two other persons, blocked the car in which the de facto complainants were traveling and caused voluntary hurt by beating them with hands. It is also alleged that the petitioner and two other persons have broken the front glass of the car driven by the de facto complaint and thereby caused a loss of Rs. 11,500/-. Annexure A1 is the final report submitted by the Police.
3. Originally, the aforesaid crime was tried as SC No. 750 of 2016 by the Assistant Sessions Court, Hosdurg upon being committed by the Judicial First Class Magistrate Court - II, Hosdurg in C. P. No. 210 of 2015. In the said trial, the 2nd and 3rd accused have Crl. M.C. No. 3165 of 2022 -3- participated. As the petitioner did not appear during the committal proceedings, the proceedings against him was not committed and the same is now pending as L.P. No. 13 of 2019 before the Judicial First Class Magistrate Court - II, Hosdurg. The trial conducted as against the accused Nos. 2 and 3 resulted in Annexure A2 judgment by which both the said accused persons were acquitted under Section 232 of Cr.P.C.
4. This Crl. M. C. is filed by the petitioner / 1 st accused by placing reliance on the findings and observations contained in Annexure A2 judgment. It is contended that the substratum of the case itself is lost consequent to the acquittal of the co-accused. Reliance was also placed on the principles laid down by a Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 551].
5. Heard Smt. Reeha Khader, learned counsel for the petitioner and Sri. C. S. Hrithwik, learned Public Prosecutor for the State.
6. The question that arises here is whether this is a fit case in which powers of this Court under Section 482 of the Cr.P.C. has to be invoked.
Crl. M.C. No. 3165 of 2022 -4-
7. The prayer for quashing the proceedings is sought mainly placing reliance upon Annexure A2 judgment. Learned counsel for the petitioner brought my attention to paragraphs 9, 10, 11 and 12 of Annexure A2 judgment. A careful scrutiny of the observations made therein would indicate that PW3 and PW4, who are the injured persons in the incident, have turned hostile to the prosecution. Both of them have categorically deposed that even though incident in the manner claimed by the prosecution has occurred, they could not identify any of the assailants. There are no other evidence connecting the accused persons to the offences alleged. The order of acquittal was passed in such circumstances by the learned Assistant Sessions Judge.
8. Thus, when the observations and findings entered by the learned Assistant Sessions Judge are taken into consideration, it is evident that the very base of the prosecution itself was shattered. Even the injured person did not support the prosecution by specifically stating that they could not identify any of the assailants.
9. In such circumstances, it can be safely concluded that this is a case in which the findings entered by the learned Assistant Sessions Judge in Annexure 2 judgment will have the impact of destroying the Crl. M.C. No. 3165 of 2022 -5- substratum of the case. Therefore this is a fit case in which the principles laid down by the Full Bench of this Court in Moosa's case can be applied. Thus I find merits in the contentions put forward by the learned counsel for the petitioner.
Accordingly this Crl. M. C. is allowed. All further proceedings in Crime No. 652 of 2015 of Bekal Police Station including the proceedings in L. P. No. 13 of 2019 on the files of Judicial First Class Magistrate Court - II, Hosdurg as against the petitioner are hereby quashed.
Sd/-
ZIYAD RAHMAN A. A.
JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE Crl. M.C. No. 3165 of 2022 -6- APPENDIX OF CRL.MC 3165/2022 PETITIONER ANNEXURES Annexure A1 A CERTIFIED COPY OF FINAL REPORT IN CRIME NO.652 /2015 OF BEKAL POLICE STATION, KASARGOD DISTRICT Annexure A2 A CERTIFIED COPY OF THE JUDGEMENT IN SC 750/2016 NOW PENDING ASL.P NO. 13/2019 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE II,HOSDURG