Savad M vs State Of Kerala
2022 Latest Caselaw 5406 Ker

         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


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                             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

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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

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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

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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

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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

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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.