Sharafudheen vs State Of Kerala
2023 Latest Caselaw 7235 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. 5585 OF 2021
    AGAINST THE ORDER/JUDGMENT IN LP 58/2018 OF ADDITIONAL
        DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE
PETITIONER/S:

           SHARAFUDHEEN
           AGED 36 YEARS
           S/O.MOIDU,
           THAVODI VEEDU, KADAMERI (PO),
           KADAMERI AMSOM DESOM,
           KOZHIKODE DISTRICT.


           BY ADVS.
           P.V.ANOOP
           PHIJO PRADEESH PHILIP
           M.P.PRIYESHKUMAR

RESPONDENT/S:

1          STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA,
           ERNAKULAM, KOCHI-682031.
2
           VINEESH
           AGED 35 YEARS
           S/O.BALAN,
           RESIDING AT THEVARKUNNUMMAL HOUSE,
           AYANCHERI AMSOM, THAROPOYIL DESOM,
           AYANCHERI (PO), VATAKARA TALUK,
           KOZHIKODE DISTRICT, PIN-673541.

3          DINESHAN,
           AGED 40 YEARS
           S/O.KANNAN,
           RESIDING AT CHANGAROTH HOUSE,
           THIRUVALLUR AMSOM DESOM, THIRUVALLUR (PO),
           VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673541.
 CRL.MC NO. 5585 OF 2021
                              2


4        LIJEESH
         AGED 33 YEARS
         S/O.KUNHIKKANNAN,
         RESIDING AT THEKKEY MALAYIL
         HOUSE, AYANCHERY AMSOM DESOM, AYANCHERI (PO),
         VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673541.


         BY ADV K.V.SREERAJ

         SRI. M P PRASHANTH, PP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 27.06.2023, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 5585 OF 2021
                                        3



                                     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 sole accused in S.C. No. 690/2023

on the files of the Additional Sessions Court-IV, Kozhikode. In the aforesaid

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

143, 147, 148, 341, 324, 153(A), 395 r/w Section 149 of the IPC.

3. The prosecution allegation is that on 17.12.2010 at about 10.30

p.m., the petitioner herein along with the rest of the accused formed

themselves into an unlawful assembly and in prosecution of their common

object, wrongfully restrained the party respondents and attacked them with

weapons causing injuries.

4. The final report laid before the learned magistrate would reveal

that five persons were arrayed as accused, and the petitioner herein was the

5th accused. The 4th accused appeared before the Sessions Judge and faced

trial. By judgment dated 10.02.2017 in S.C.No. 493/2014, he was found not

guilty of the offences and was acquitted under Section 235 of the Code.

Later, the 1st accused appeared before the learned Sessions Judge and faced

trial. The learned Sessions Judge by judgment dated 27.07.2021 in S.C.No.

326/2021 acquitted him of all charges under Section 232 of the Cr.P.C. for CRL.MC NO. 5585 OF 2021

want of evidence. The petitioner states that he has resolved all his disputes

with the party respondents. He refers to the affidavits sworn to by them to

prove the resolution of disputes.

5. 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 also contends that the de facto complainant/victims/injured have

also filed Annexures-E to G affidavits asserting that they have no subsisting

grievance against the petitioner and that they have no objection in quashing

the proceedings.

6. Sri. Anoop P.V., 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 affidavits filed by

[(2019) 5 SCC 688]

(2012) 10 SCC 303

2014 (6) SCC 466 CRL.MC NO. 5585 OF 2021

respondents 2 to 4, this Court will be justified in terminating the proceedings.

7. I have heard the learned Public Prosecutor.

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

Annexure-C and D judgments of acquittal rendered by the court below. The

learned Sessions Judge, after meticulous analysis of the evidence on record,

came to the conclusion that the accused were entitled to acquittal under

Section 232 of the Code. As held by a three-Judge Bench of this Court in

Moosa (supra), 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 of the case is lost, is an exception to the above

rule. In the case on hand, the de facto complainant/injured/victims have also

filed affidavits stating that they have no subsisting grievance.

9. 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 affidavits filed by respondents 2 to 4.

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 CRL.MC NO. 5585 OF 2021

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

Section 482 of the Code and in quashing the proceedings.

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

Crime No. 710 of 2010 of the Nadapuram Police Station and all further

proceedings pursuant thereto against the petitioner now pending as

S.C.No.690 of 2023 on the file of the Additional District and Sessions

Judge-IV, Kozhikode, are quashed.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

avs CRL.MC NO. 5585 OF 2021

APPENDIX OF CRL.MC 5585/2021

PETITIONER ANNEXURES Annexure A CERTIFIED COPY OF THE FIR IN CRIME NO.710 OF 2010 OF NADAPURAM POLICE STATION, KOZHIKODE. Annexure B CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.710 OF 2010 WHICH IS NOW PENDING AGAINST THE PETITIONER AS L.P.NO.58 OF 2018 ON THE FILE OF ADDITIONAL SESSIONS COURT-IV, KOZHIKODE.

Annexure C TRUE COPY OF THE ORDER DATED 27.07.2021 IN S.C.NO.326 OF 2021 ON THE FILE OF SESSIONS COURT, KOZHIKODE.

Annexure D CERTIFIED COPY OF THE ORDER DATED 10.02.2017 IN S.C.NO.493 OF 2014 ON THE FILE OF SESSIONS COURT, KOZHIKODE.

Annexure E AFFIDAVIT SWORN BY THE SECOND RESPONDENT DATED 12.07.2021.

Annexure F AFFIDAVIT SWORN BY THE THIRD RESPONDENT DATED 12.07.2021.

Annexure G AFFIDAVIT SWORN BY THE FOURTH RESPONDENT DATED 12.07.2021.