Firoz Khan vs State Of Kerala
2022 Latest Caselaw 8170 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
       FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                     CRL.MC NO. 3888 OF 2022
        CRIME NO.77/2005 OF Chirayinkeezhu Police Station,
                        Thiruvananthapuram
SC 1126/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII,
                       THIRUVANANTHAPURAM
PETITIONER/ACCUSED (ORIGINAL 11TH ACCUSED):

          FIROZ KHAN
          AGED 36 YEARS
          S/O ABDUL LATHEEF, FIROZ MANZIL, PARYATHUKONAM,
          CHITTATTINKARA DESOM, KIZHUVILAM VILLAGE,
          THIRUVANANTHAPURAM DISTRICT., PIN - 695104

          BY ADV P.ANOOP (MULAVANA)


RESPONDENTS/STATE:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031

          BY ADV.
          ADV.SUDHEER GOPALAKRISHNAN - PUBLIC PROSECUTOR
     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 3888 OF 2022
                                   2

                                ORDER

The petitioner is the 11th accused in Crime No.77/2005 of

Chirayinkeezhu Police Station. The offence alleged against the accused

persons who were 11 in number is under Section 395 of Indian Penal

Code.

2. The prosecution case is that, on 26.02.2005, the accused

Nos.1 to 11 trespassed into the compound of the house of defacto

complainant and robbed a gold chain weighing 5 sovereigns, bangles

weighing 1 sovereign and a ring weighing ½ sovereign. Annexure 1 is

the final report submitted by the Police. The Judicial First Class

Magistrate Court I, Attingal has taken cognizance of the same as C.P.

No.2/2008 and later the same was committed to the Sessions Court,

Thiruvananthapuram where it was numbered as S.C. No.1146/2008.

The said case was later made over to Additional Sessions Court - VII,

Thiruvananthapuram where it was tried in which all the accused except

the petitioner and the 3rd accused have participated. Annexure 2 is the

judgment passed in the said trial. The case against the petitioner was

split up and the same now stands re-filed as S.C. No.1126/2016 and is CRL.MC NO. 3888 OF 2022

pending before the Additional Sessions Court VII, Thiruvananthapuram.

This Crl.M.C. is filed for quashing all further proceedings pursuant to

Annexure A1 final report.

3. Heard Sri.P.Anoop Mulavana, learned counsel appearing for

the petitioner and Sri.Sudheer Gopalakrishnan, learned Public

Prosecutor appearing for the State.

4. The specific contention put forward by the learned counsel

for the petitioner is that, consequent to the order of acquittal passed

against other accused in Annexure A2 judgment, the substratum of the

prosecution case is lost and hence further proceedings against the

petitioner is unwarranted. Reliance was also placed on the judgment

rendered by the Full Bench in Moosa v. Sub Inspector of Police

[2006(1) KLT 552]

5. On the other hand, the learned Public Prosecutor would

oppose the aforesaid contention by pointing out that the question as to

the role played by the petitioner in commission of the crime is a matter

of evidence and the same cannot be considered during the course of

proceedings of this nature. It is also pointed out that merely because of CRL.MC NO. 3888 OF 2022

the reason that the other accused persons were acquitted, the proceeding

against the petitioner herein cannot be quashed.

6. It is discernible from the records that, the defacto

complainant is no more. The prosecution has examined two occurrence

witnesses namely PW1 and PW2. PW2 is the daughter of the defacto

complainant who deposed that, even though an incident in the manner

stated in the final report has indeed occurred, she is unable to identify

any of the assailants. PW2 is the husband of the defacto complainant.

He deposed that, even though the incident has occurred he is also not in

a position to identify any of the assailants. It was in that circumstances,

the learned Sessions Judge acquitted the other accused persons. The

aforesaid judgment was passed on 18.10.2016 and the same has become

final.

7. Thus, on going through the aforesaid findings, it is evident

that the substratum of the case is lost. The prosecution could not

produce any witnesses or adduce any materials to substantiate that any

of the persons accused of the offences were involved in the aforesaid

case. The findings entered by the learned Sessions Judge in Annexure CRL.MC NO. 3888 OF 2022

A2 were made in respect of the accused persons who faced the trial, but

the ultimate result of the said finding is that, the prosecution failed to

establish the case advanced by them by adducing any evidence. In such

circumstances, it can be safely concluded the substratum of the case

itself is lost consequent to the findings entered by the learned Sessions

Judge in Annexure 2. Therefore, I find this as a case in which the

principles laid down by this Court in Moosa's case (supra) can be

applied.

In the result, this Crl.M.C. is allowed and Annexure 1 final report

submitted in Crime No.77/2005 of Chirayinkeezhu Police Station and all

further proceedings in S.C. No.1126/2016 on the file Additional

Sessions Court - VII , Thiruvananthapuram against the petitioner are

hereby quashed.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE scs CRL.MC NO. 3888 OF 2022

APPENDIX OF CRL.MC 3888/2022

PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 77/2005 OF THE CHIRAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM DISTRICT.

Annexure2 CERTIFIED COPY OF THE JUDGMENT DATED 18-

10-2016 IN SC 1146/2008 OF THE ADDITIONAL SESSIONS COURT-VII, THIRUVANANTHAPURAM.