Sabir Babu vs State Of Kerala
2023 Latest Caselaw 7593 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   FRIDAY, THE 14TH DAY OF JULY 2023 / 23RD ASHADHA, 1945
                     CRL.MC NO. 5520 OF 2023
       AGAINST THE ORDER/JUDGMENT IN CC NO.761/2022 OF
    JUDICIAL MAGISTRATE OF FIRST CLASS -I, PERINTHALMANNA


PETITIONER/ 6th ACCUSED:

          SABIR BABU
          AGED 44 YEARS, S/O MOIDEENKUTTY,
          VAILASSERI HOUSE, VILAYUR AMSOM,
          PERADIYUR DESOM, PERINTHALMANNA,
          MALAPPURAM DISTRICT., PIN - 679309

          BY ADVS.
          P.SAMSUDIN
          MILAN RACHEL MATHEW
          NASRIN WAHAB


RESPONDENT/ STATE:

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


          SMT.T.V.NEEMA - SR.PP

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 14.07.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 Crl.M.C.No. 5520 of 2023

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                               ORDER

Dated this the 14th day of July, 2023

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 was the accused No.6 in

C.C.No.315/2001 on the file of Judicial First Class Magistrate

Court-I, Perinthalmanna (for short, 'the court below'). There were

altogether nine accused. The offences alleged against the

petitioner are punishable under Sections 143, 147, 148, 324, 326

r/w Section 149 of the IPC.

3. The prosecution case in short is that, on 20/09/2000 at

about 7 pm, all the accused formed an unlawful assembly at

Perinthalmanna Town armed with deadly weapons and in

prosecution of the common object of the assembly, beat CW's 1, 2

and 3 with an iron rod causing them serious injuries. All the

accused except the petitioner and accused No.9 faced trial. The

court below after full-fledged trial found that the prosecution failed Crl.M.C.No. 5520 of 2023

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to prove the offences against the accused and accordingly

accused Nos. 1 to 5 and 7 and 8 were acquitted. Annexure A3 is

the order. The case as against the petitioner was split up and

refiled as C.C.No.761/2022. 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, he has

filed this Crl.M.C. invoking Section 482 of Cr.P.C.

4. I have heard Sri.Samsudin Panolan, the learned

counsel for the petitioner and Smt.T.V.Neema, the learned Senior

Public Prosecutor.

5. To prove the prosecution case, PW's 1 to 7 were

examined. None of the prosecution witnesses supported the

prosecution. The defacto complainant as well as the injured turned

hostile. A reading of Annexure A3 order would show that the

substratum of the prosecution case is dislodged.

6. 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 Crl.M.C.No. 5520 of 2023

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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 552] in paragraph 50 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.

This is a case where the entire prosecution case 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 against the petitioner.

Accordingly, all further proceedings against the petitioner in

C.C.No.761/2022 on the files of Judicial First Class Magistrate

Court-I, Perinthalmanna stands hereby quashed and this Crl.M.C.

is allowed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE APA Crl.M.C.No. 5520 of 2023

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APPENDIX OF CRL.MC 5520/2023

PETITIONER'S ANNEXURES

Annexure - A1 CERTIFIED COPY OF FIR IN CRIME NO.

822/2000 OF THE PERINTHALMANNA POLICE STATION Annexure - A2 CERTIFIED COPY OF FINAL REPORT AND MEMORANDUM OF EVIDENCE IN CC 761/2022 ON THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, PERINTHALMANNA Annexure - A3 TRUE COPY OF THE JUDGMENT DATED 06-04-

2005 IN CC NO. 315/2001 ON THE FILES OF JFCM COURT I, PERINTHALMANNA