Abdul Gafoor vs State Of Kerala
2023 Latest Caselaw 5174 Ker

CRL.MC NO. 3342 OF 2023           1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
     TUESDAY, THE 18TH DAY OF APRIL 2023 / 28TH CHAITHRA, 1945
                     CRL.MC NO. 3342 OF 2023
            CRIME NO.103/2014 OF BEKAL POLICE STATION
  LPC 45/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDURG
PETITIONER/5TH ACCUSED:

          ABDUL GAFOOR
          AGED 38 YEARS
          SON OF ABBAS, NALAMVATHUKKAL, BARA VILLAGE, HOSDURG
          TALUK, KASARAGOD- ., PIN - 671317
          BY ADVS.
          A.ARUNKUMAR
          S.SHYAM KUMAR
          HEERAKRISHNA T.H.
          SACHIN GEORGE ARAMBAN


RESPONDENT/STATE:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
          ERNAKULAM -, PIN - 682031
OTHER PRESENT:

          SR PP REKHA S


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.04.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 3342 OF 2023           2



                            ORDER

This Crl.M.C. has been filed to quash the proceedings

against the petitioner on the ground of acquittal of the

remaining accused.

2. The petitioner is the accused No.5. The offences

alleged are punishable under Sections 143, 147, 341, 224,

225 and 353 read with 149 of the Indian Penal Code.

3. The prosecution case, in short, is that on

04.02.2014 at 5.00 p.m. at Nalamvathukkal in Uduma

village, the petitioner along with the remaining accused

formed an unlawful assembly and in prosecution of their

common object got the first accused released from the

lawful custody of CW1 by force and thereby committed the

offence.

4. Accused Nos.1 to 4 alone faced trial in

C.C.No.1766 of 2014.

5. The learned Magistrate, after trial, found that the

prosecution failed to prove the offences alleged against

them and accordingly they were acquitted. Annexure-AIII

is the judgment. The petitioner and accused No.6 were

absconding then. The case as against them were split up.

Thereafter the 6th accused approached this Court and

proceedings as against him was quashed as per

Annexure-AIV judgment. According to the petitioner, in

view of the acquittal of the remaining accused, the

substratum of the prosecution case is dislodged. It is in

these circumstances that the petitioner has filed this

Crl.M.C. under Section 482 of the Code of Criminal

Procedure.

6. I have heard Sri.A.Arun Kumar, the learned

counsel for the petitioner and Smt.Rekha S., the learned

Senior Public Prosecutor.

7. To prove the prosecution case, PWs.1 to 5 were

examined. PW1 is the defacto complainant. He is the Sub

Inspector of Police in Bekal Police Station. PW2 is the

police officer who accompanied PW1. PW3 is an

independent witness, but he did not support the

prosecution. PWs.4 and 5 are the witnesses to the scene

mahazar.

8. The court below, after analysing the entire

evidence, found that the prosecution failed to prove the

case against the accused with cogent and reliable

evidence. A reading of Annexure-AIII judgment would

show that the substratum of the prosecution case is

dislodged. That apart, this Court has already quashed

proceedings against accused No.6.

9. The Apex Court in Sahadevan and 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

benefit should accrue to all the accused persons and not

merely to the accused who faced trial. A Full Bench of this

Court in Moosa v. Sub Inspector of Police [2006 (1) KLT

522], in paragraph 50, has held that in a case where the

substratum of the prosecution case is lost by the acquittal

of the co-accused, the power under Section 482 of the

Cr.P.C. could be invoked.

This is a case where the entire prosecution was found

to be unreliable and the prosecution as a whole has not

been able to prove its case beyond reasonable doubt.

Hence, no purpose will be served in proceeding with the

trial of the accused. Accordingly, all further proceedings

against the petitioner in Crime No.103 of 2014 of Bekal

Police Station, now pending as L.P.C.No.45 of 2020 on the

file of the Judicial First Class Magistrate Court-II,

Hosdurg, are hereby quashed.

The Crl.M.C. is allowed.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE okb/18.4.23 //True copy// P.S. to Judge

APPENDIX OF CRL.MC 3342/2023

PETITIONER ANNEXURES Annexure AI A TRUE COPY OF THE F.I.R IN CRIME NO.103 OF 2014 OF BEKAL POLICE STATION Annexure AII CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 103 OF 2014 OF BEKAL POLICE STATION Annexure AIII A TRUE COPY OF THE JUDGMENT DATED 26-08-2019 IN C.C.NO.1766 OF 2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, HOSDURG Annexure AIV A TRUE COPY OF THE ORDER DATED 29-01-2020 IN CRL.M.C.NO.20 OF 2020