Shiju vs Sub Inspector Of Police
2023 Latest Caselaw 10512 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                        CRL.MC NO. 267 OF 2023
 AGAINST THE ORDER/JUDGMENT LPC 79/2011 OF JUDICIAL MAGISTRATE OF
                      FIRST CLASS ,PARAPPANANGADI
PETITIONER/ACCUSED:

          SHIJU
          AGED 43 YEARS
          S/O. DEVASSY, AMBAZHAKKADAN HOUSE, NANDIPURAM P.O.,
          VARANTHARAPPILLY, TRICHUR, PIN - 680303
          BY ADVS.
          T.R.TARIN
          P.K.ANIL


RESPONDENTS/COMPLAINANT/STATE:

    1     SUB INSPECTOR OF POLICE
          THIRURANGADI POLICE STATION, MALAPPURAM DISTRICT, PIN -
          673638
    2     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:

          HRITCWICK CS PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 267 OF 2023                    2




                             P.V.KUNHIKRISHNAN, J.
                          --------------------------------
                          Crl.M.C. No.267 of 2023
                   ----------------------------------------------
                  Dated this the 16th day of October, 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 the accused in LPC No.79/2011 on

the file of the Judicial First Class Magistrate Court,

Parappanangadi. The above case is charge sheeted alleging

offences punishable under Sections 395 and 120(B) of IPC. It

is submitted that the co-accused were already acquitted as

evident by Annexure A3 judgment.

3. When this Criminal Miscellaneous Case came up for

consideration, this Court directed the petitioner to surrender

before the jurisdictional court and it is submitted that the

petitioner already surrendered before the jurisdictional court

and the case is now numbered as SC No.666/2023 before

the Additional Sessions Court-II Manjeri.

4. 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.

5. 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:-

13. PW1 stated he has no previous acquaintance with

accused No.1. Though he stated that he has stated the marks

for identifying the person who snatched away the bag when

giving Ext.P1 F.I. Statement no mark for identifying that

person is seen stated in Ext.P1. Ext.P1 shows that that person

was suddenly getting down from the car and beating PW1 and

snatching away the bag from his possession. So it has to be

doubted whether PW1 was able to see that person properly to

identify after more than 11 years before court. No

identification parade was conducted after the arrest of A1. As

the evidence of PW1 shows that the incident was when there

was power cut and accused No.1 was shown to him only after

more than 5 years of the incident and his evidence before

court is after more than 5 years showing accused No.1 to him

according to him and PW8 it cannot be accepted that his

identification of accused No.1 as the person who snatched

away the bag from his possession is proper. There is no other

evidence to show the involvement of accused No.1 in the

alleged crime. The recovery of the gold ornaments and cash

and the bag said to have been snatched away from the

possession of PW1 is not effected in this case. Based on the

evidence of PW1 alone it is not possible to accept that accused

No.1 was the person who snatched away the bag containing

the gold ornaments and cash from his possession after causing

hurt to him. In the circumstances it is found that the

prosecution has not succeeded in proving the case against the

accused No.1,2 and 4 beyond reasonable doubt. These points

are found against the prosecution.

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 SC No.666/2023

arising from Crime No.102/2002 of Tirurangadi police station

are quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE ska

APPENDIX OF CRL.MC 267/2023

PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CR NO. 102/2002 OF THIRURANGADI POLICE STATION Annexure2 CERTIFIED COPY OF THE FINAL REPORT IN LPC 79/2011 ON THE FILE OF THE JFCM, PARAPPANANGADI Annexure3 CERTIFIED COPY OF THE JUDGMENT IN SC 142/2010 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE - II, MANJERI DATED 29.8.2013