Shameer vs State Of Kerala
2023 Latest Caselaw 12416 Ker

Citation : 2023 Latest Caselaw 12416 Ker
Judgement Date : 22 November, 2023

Kerala High Court

Shameer vs State Of Kerala on 22 November, 2023

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945
                      CRL.MC NO. 9312 OF 2023
      CRIME NO.1496/2012 OF Alathur Police Station, Palakkad
  AGAINST THE ORDER/JUDGMENT CC 99/2020 OF JUDICIAL FIRST CLASS
                       MAGISTRATE-I,ALATHUR
PETITIONER/ACCUSED:

          SHAMEER
          AGED 35 YEARS
          S/O.ABDUL RAHIMAN, THEKKUMURI, THAROOR.P.O,
          PAZHAMBALACODE, PALAKKAD, PIN - 678544
          BY ADV V.A.JOHNSON (VARIKKAPPALLIL)


RESPONDENT/COMPLAINANT & STATE:

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

          SRI MP PRASANTH , PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 9312 OF 2023                    2




                          P.V.KUNHIKRISHNAN, J.
                          --------------------------------
                         Crl.M.C. No.9312 of 2023
                   ----------------------------------------------
                Dated this the 22nd day of November, 2023

                                     ORDER

This Criminal Miscellaneous Case is filed under Section

482 of the Code of Criminal Procedure, 1973 ("the Code" for

the sake of brevity).

2. The petitioner is one of the accused in Crime

No.1496/2012 of Alathur Police Station which is now pending

as CC No.99/2020 on the file of Judicial First Class Magistrate

Court-I Alathur.

3. The above case is charge sheeted against the

petitioner and others alleging offences punishable under

Sections 341, 324, 506(ii) r/w 34 IPC. It is submitted that the

co-accused were acquitted as per Annexure A2 judgment by

the trial Court and continuation of proceedings against the

petitioner is an abuse of process of court.

4. The learned Public Prosecutor submitted that the

defacto complainant who is the injured is not examined but

the learned Public Prosecutor conceded that when the police

questioned him, he said that he is not interested to continue

in the case. If that is the case, in the light of Annexure A2

judgment the prosecution against the petitioner alone is an

abuse of process of court.

5. Heard counsel for the petitioner and the Public

Prosecutor. The counsel for the petitioner submitted that the

co-accused were already acquitted by the trial court and the

continuation of the trial against the petitioner will be an

abuse of process of court because the substratum of the

prosecution case is shattered. The Public Prosecutor

submitted that the petitioner has to face trial before the

lower court and this court may not invoke the powers under

Section 482 of the Code.

6. This Court in Moosa v. Sub Inspector of Police

(2006 (1) KLT 552), Abbas T.K. v. State of Kerala

(2013 KHC 336) and in Ashraf Kancheriyil v. State of

Kerala (2011(2) KHC 812) considered the powers of this

court to invoke Section 482 of the Code to quash the

proceedings based on the acquittal of co-accused. The

dictum laid down by this court in the above judgment is that,

if substratum of prosecution case is shattered by the

judgment of acquittal of the co-accused that could be taken

into account while considering the request to quash the

proceedings. After going through the judgment of the trial

court, I am of the considered opinion that the continuation of

the prosecution against the petitioner will be an abuse of

process of court. It will be beneficial to extract the relevant

portion of the judgment by which the co-accused is

acquitted:-

"16. Here, the presence of CW1 could not be secured by

the prosecution inspite of coercive steps. There is no definite

case regarding the obstruction. If that be the case, I am of the

view that the prosecution has failed to prove the offence of

wrongful restraint as defined u/s. 341 IPC.

18. As far as the section 324 IPC is concerned, the oral

evidence of PW1 is to the effect that at first Basheer beat CW1

and two other persons accompanied Basheer. PW2 deposed

that he had witnessed Basheer and two to three persons

attacking CW1. CW1 was taken to Alathur Hospital. Thereafter

he turned hostile to the prosecution case. Admittedly Basheer

is not made an accused in this case. There is no clear cut

evidence regarding the presence of these accused and the

acts made by each accused. No weapons were seized by the

prosecution. There is no evidence to prove the offence u/s

506(ii) IPC."

7. From the above, it is clear that the substratum of the

prosecution case is shattered by the judgment delivered by

the lower court, while acquitting the co-accused. Therefore,

this Court is of the view that the continuation of the

prosecution will be an abuse of process of court and it will be

a judicial waste of time. Therefore, this Crl.M.C can be

allowed.

Hence, this Criminal Miscellaneous Case is allowed. All

further proceedings against the petitioner in Crime

No.1496/2012 of Alathur Police Station which is now pending

as CC No.99/2020 on the file of Judicial First Class Magistrate

Court-I Alathur are quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

ska

PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE FINAL REPORT IN C.C.NO:

99/2020 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, ALATHUR Annexure 2 CERTIFIED COPY OF THE JUDGMENT IN C.C.NO:3209/2012 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, ALATHUR DATED 07.03.2020