Fasil.K vs State Of Kerala
2023 Latest Caselaw 7226 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
        TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                       CRL.MC NO. 2815 OF 2023

  AGAINST LPC NO.11/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,
                             NADAPURAM
PETITIONER/ACCUSED NO.4 :

            FASIL.K
            AGED 30 YEARS
            S/O. YUSAF, KANHIROL HOUSE, PULIYAVU POST
            KOZHIKODE DISTRICT,, PIN - 673509

            BY ADV M.P.PRIYESHKUMAR

RESPONDENTS/STATE & COMPLAINANT :

    1       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM,
            KOCHI, PIN - 682031
    2       ABHILASH
            AGED 29 YEARS
            S/O.BABU PULLANHIPOYIL HOUSE, CHUZHALI (PO),
            KOZHIKODE DISTRICT, PIN - 673517



            SRI. T R RENJITH, SR. PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C No.2815 of 2023                     2




                                      ORDER

The instant petition is filed under Section 482 of the Code of Criminal

Procedure ("the Code" for the sake of brevity).

2. The petitioner herein is the 4th accused in C.P. No.33 of 2023 on

the files of the Judicial Magistrate of First Class Nadapuram. In the aforesaid

case, he is accused of having committed the offences punishable under

Sections 341, 324, 294(b), 506(ii) and 308 read with Section 34 of the IPC.

The aforesaid case has arisen from Crime No.247 of 2015 of the Nadapuram

Police station. The final report has been laid before the learned Judicial First

Class Magistrate Court, Nadapuram arraying as many as four persons as

accused. The petitioner herein was the 4th accused. As the petitioner failed to

appear before the court, the case against accused Nos.1 to 3 was put on trial

in SC No.820 of 2015, and they were acquitted of all charges.

3. It is on the basis of the acquittal of the co-accused that this

petition is filed seeking to quash the proceedings on the ground that the

substratum of the case against the petitioner has been shattered. The

petitioner contends that the de facto complainant has also filed an affidavit

asserting that he has no subsisting grievance against the petitioner and that

he has no objection in quashing the proceedings.

4. Sri. Priyesh Kumar, the learned counsel appearing for the

petitioner, has relied on the judgments rendered by this Court in Moosa v.

Sub Inspector of Police1 [2006 (1) KLJ 349], Abbas T.K. v. State of

Kerala [2013 KHC 336], Jalalu Rajan and Anr v. State of Kerala [2013

KHC 177] and Ashraf Kancheriyil v. State of Kerala [2011 (2) KHC 812]

and it was urged that the continuance of proceedings against the petitioner

herein would serve no purpose. Reliance is also placed on State of M.P. v.

Laxmi Narayan,2 Gian Singh v. State of Punjab3, Narinder Singh v.

State of Punjab4, and it is argued that on the basis of the affidavit filed by

the 2nd respondent, this Court will be justified in terminating the proceedings.

5. I have heard the learned Public Prosecutor.

6. I have gone through the Annexure-B final report and Annexure-C

judgment of acquittal rendered by the court below. It is borne out from

Annexure-C that none of the prosecution witnesses had deposed in tune with

the prosecution case. The Court below, after meticulous analysis of the

evidence on record, came to the conclusion that the accused were entitled to

acquittal under Section 235(1) of the Code. As held by a three-Judge Bench of

this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552),

though the reasoning of the judgment contained or appreciation of evidence

in the case of a co-accused therein are not grounds to attract any relief under

Section 482 of the Code of Criminal Procedure, a case where the substratum

[(2019) 5 SCC 688]

(2012) 10 SCC 303

2014 (6) SCC 466

of the case is lost, is an exception to the above rule. In the case on hand, the

de facto complainant has also filed an affidavit stating that he has no

subsisting grievance.

7. I am of the firm view that no purpose is going to be served by

directing the petitioner herein to undergo the ordeal of a trial at this stage.

It can only be a futile exercise and will only serve to waste precious judicial

time, which can be used for more productive work. The prospects of

conviction are nil in view of the affidavit filed by the de facto complainant.

Furthermore, no evidence of worth could be adduced by the prosecution

during the previous trial. In that view of the matter, I am of the considered

opinion that this Court will be well justified in invoking the powers under

Section 482 of the Code and in quashing the proceedings.

Resultantly, this petition is allowed. Annexure-B final report in Crime

No.247 of 2015 of the Nadapuram Police Station and all further proceedings

pursuant thereto against the petitioner, now pending as C.P. No.33/23 on the

file of the Judicial Magistrate of First Class, Nadapuram, are quashed.

Sd/-

RAJA VIJAYARAGHAVAN V., JUDGE

NS

APPENDIX OF CRL.MC 2815/2023

PETITIONER ANNEXURES :

Annexure A                  A CERTIFIED COPY OF THE FIR IN CRIME
                            NO.247/2015 OF NADAPURAM POLICE STATION,
                            KOZHIKODE

Annexure B                  A CERTIFIED COPY OF THE FINAL REPORT IN CRIME

NO.247/2015 OF NADAPURAM POLICE STATION WHICH IS NOW PENDING AS LP.C NO.11/2016 ON THE FILE OF THE JFCM NADAPURAM

Annexure C A CERTIFIED COPY OF THE JUDGMENT IN SC 820/2015 OF ADDITIONAL SESSIONS COURT-V, KOZHIKODE

Annexure D AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 21.03.2023