IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
CRL.MC NO. 2522 OF 2022
CC 210/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYANNUR
Crime No.220/2013 at the Payyannur Police Station
PETITIONERS/ACCUSED Nos.2, 3 & 4:
1 SAVAD M
AGED 35 YEARS
S/O ABDUL SAMAD
MUTTOL (HOUSE)
ETTIKULAM,
RAMANTHALI AMSOM
ETTIKULAM, PIN - 670308
2 BASHEER M.P
AGED 38 YEARS
S/O ASSAINAR
MULLAKETTIL PUTHIYAPURAYIL HOUSE
RAMANTHALI AMSOM
ETTIKULAM, PIN - 670308
3 HASBULLA.K.A,
AGED 29 YEARS,
S/O.ASSAINAR,
ALMAKUBUL, KAKKAMPARA,
RAMANTHALI AMSOM,
ETTIKULAM, PIN - 670308.
BY ADVS.
T.B.SHAJIMON
GOVINDU P.RENUKADEVI
RESPONDENT/STATE:
STATE OF KERALA,
REP RESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY SRI.M.P.PRASANTH- Public Prosecutor
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Crl.M.C.No.2522 of 2022
..2..
ORDER
This Crl.M.C. has been filed to quash the proceedings against the petitioners on the ground of acquittal of the remaining accused.
2. The petitioners are the accused Nos.2, 3 and 4. A crime was registered against the petitioners and the accused Nos.1, 5 and 6 as Crime No.220/2013 at the Payyannur Police Station for the offences punishable under Sections 143, 147, 447, 427 and 506(i) read with Section 149 of the IPC.
3. The prosecution case, in short, is that, on 26.2.2013 at 11 hours, at a place called Mottakkunnu in Ramanthali amsom, the petitioners along with the remaining accused formed an unlawful assembly and in prosecution of the common object of the assembly, trespassed into the property of the husband of the de facto complainant, destroyed the foundation of the house under construction including the sand, thereby causing a loss to the tune of Rupees three lakh.
Crl.M.C.No.2522 of 2022 ..3..
4. After completion of the investigation, the final report was filed. Annexure-2 is the final report. Accused Nos.1, 5 and 6 alone faced the trial. The learned Magistrate, after a full-fledged trial found that the prosecution failed to prove the offences against the accused and accordingly the accused Nos.1, 5 and 6 were acquitted. Annexure-1 is the judgment. Since the present petitioners did not appear, the case as against them was split up and re-numbered as C.C.No.210/2019. According to the petitioners, in view of the acquittal of the remaining accused, substratum of the prosecution case is dislodged. It is in these circumstances they have filed this Crl.M.C. invoking Section 482 of the Cr.P.C.
5. I have heard Sri.T.B.Shajimon, the learned counsel for the petitioners and Sri.M.P.Prasanth, the learned Public Prosecutor for the respondent.
6. To prove the prosecution case, PWs.1 to 8 were examined. The prosecution mainly relied on the evidence of PWs.1 and 2 to prove the incident and to fix the culpability on the accused. They were cited as eye witnesses. However, the Crl.M.C.No.2522 of 2022 ..4..
court below on evaluation of the evidence found that the presence of PWs.1 and 2 at the place of occurrence during the alleged time of the incident is highly doubtful. The court below also found that the presence of CW3, another witness, who allegedly witnessed the incident at the place of occurrence, is also doubtful. The court below further found that the delay in lodging the FIS was not properly explained by the prosecution. The court below also found that the prosecution miserably failed to prove the possession and ownership of the de facto complainant over the property in order to prove criminal trespass. In short, the court below concluded that the evidence of PWs.1 and 2 is not sufficient to prove the offences allegedly committed by the accused. Accordingly, the accused Nos.1, 5 and 6 were acquitted.
7. The Supreme Court of India in Sahadevan & another v. State of Tamil Nadu [2012 (6) SCC 403] has held that, if the entire prosecution case has been found to be unreliable and the prosecution as a whole has not been able to prove its case beyond reasonable doubt, then the benefit Crl.M.C.No.2522 of 2022 ..5..
should accrue to all the accused persons and not merely to the accused who faced trial. The Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 552] in paragraph 50 has held that in a case where the very substratum of the case is lost by the acquittal of the co- accused, the power under Section 482 of the Cr.P.C. could be invoked. Relying on the judgment of the Supreme Court in Sahadevan's case (supra), a Single Bench of this Court in Ajith v. State of Kerala [2012 (4) KLT 73] has held that in exercise of inherent power vested with this Court under Section 482 of the Cr.P.C., the benefit of the judgment of acquittal of the court can be extended to non-appealing convicts if the prosecution miserably failed to prove the case beyond reasonable doubt not only against the accused who faced trial, but against all the accused.
8. A perusal of Annexure-1 judgment shows that this is a case where the entire prosecution case has been found unreliable and the prosecution as a whole has not been able to prove its case beyond reasonable doubt. Hence, no purpose Crl.M.C.No.2522 of 2022 ..6..
will be served in proceeding with the trial against the petitioners.
9. For the reasons stated above, I am of the view that this is a fit case where the jurisdiction vested with this Court under Section 482 of the Cr.P.C could be invoked. Accordingly, all further proceedings as against the petitioners in C.C.No.210/2019 on the file of the Judicial First Class Magistrate Court, Payyannur stand quashed.
This Crl.M.C. is allowed as above.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE skj Crl.M.C.No.2522 of 2022 ..7..
APPENDIX OF CRL.MC 2522/2022 PETITIONERS' ANNEXURES Annexure1 COPY OF THE ORDER IN C.C.NO 882/13 PASSED BY THE JFCM PAYYANUR, DATED 22/8/2019.
Annexure2 COPY OF THE FINAL REPORT
IN CRIME NO.220/2013 OF PAYYANUR
POLICE STATION.