Ajeesh @ Anoop vs State Of Kerala
2023 Latest Caselaw 11174 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
                    CRL.MC NO. 8255 OF 2023
     AGAINST THE ORDER/JUDGMENT IN CC 703/2018 OF JUDICIAL
           FIRST CLASS MAGISTRATE COURT -I, PONNANI
PETITIONER/SOLE ACCUSED:

           AJEESH @ ANOOP
           AGED 32 YEARS
           S/O ASOKAN, KAVALANGATTU, ANAPPADI, PONNANI,
           PONNANI SOUTH, MALAPPURAM,, PIN - 679586

           BY ADVS.
           M.R.SARIN
           ANASWARA DEEPTHI.V.V.



RESPONDENT/STATE:

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


OTHER PRESENT:

           SRI RENJITH , PP




       THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   27.10.2023,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.MC No.8255 of 2023

                              2

                  P.V.KUNHIKRISHNAN
             ---------------------
                  CRL.MC No.8255 of 2023
          ---------------------------
           Dated this the 27th 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 one of the accused in Crime

No.950/2014 of Ponnani Police Station, which is now

pending as C.C.No.703/2018 on the files of the Judicial First

Class Magistrate Court-I, Ponnani. The above case is charge

sheeted against the petitioner and others alleging offences

punishable under Sections 143, 147, 148, 323, 324, 506(i)

r/w Section 149 IPC.

3. The prosecution case is that the accused formed

themselves into unlawful assembly and assaulted the

victim. It is submitted that the petitioner was not able to

appear before the trial court and hence, his case was split

up and the case against the other accused were tried and

acquitted as per Annexure A3 judgment. It is submitted

that, in the light of the same, the continuation of the CRL.MC No.8255 of 2023

prosecution against the petitioner alone is an abuse of

process of court.

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

judgement of acquittal of the co-accused that could be

taken into account while considering the request to quash CRL.MC No.8255 of 2023

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:-

"Post No.1: The defacto complainant in this examined as PW1. He has deposed that an incident that had taken place on 09-11-2014 at about 6.00 pm near Manjam Bhaghawathi Temple, Anappadi. In the incident a group of person attacked him and caused him hurt using a bamboo stick. He had given Ext.P1 statement to the police. PW2 who is the alleged eye witness to the incident has deposed in tune with PW1 with respect to the incident. The eye witness including the injured failed to identify the accused persons as the assailants. Since there is no incriminating evidence, the point is found against the prosecution.

Point No.2: In the result, all accused except No.3 are found not guilty of the offences punishable U/s. 143, 147,148, 323, 324, 506(i) r/w 149 IPC and the accused are acquitted U/s. 248(1) Cr.PC. However the bail bond executed by the accused and the sureties shall be in force for a period of six months in view of section 437A Cr.P.C. All accused except No.3 are set at liberty. Case against accused No.3 split up and refiled as CC 703/2018."

6. 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 CRL.MC No.8255 of 2023

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 alone in Crime

No.950/2014 of Ponnani Police Station, which is now

pending as C.C.No.703/2018 on the files of the Judicial First

Class Magistrate Court-I, Ponnani are quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE bng CRL.MC No.8255 of 2023

APPENDIX OF CRL.MC 8255/2023

PETITIONER ANNEXURES

Annexure A1 THE TRUE COPY OF THE F.I.R REGISTERED BY THE INVESTIGATION OFFICER IN CRIME NO 950/2014 OF PONNANI POLICE STATION, MALAPPURAM

Annexure 2 TRUE COPY OF THE FINAL REPORT FILED BY THE INVESTIGATION OFFICER AS CC NO 477/2015 BEFORE THE JUDICIAL FIRST- CLASS MAGISTRATE COURT, PONNANI, MALAPPURAM IN CRIME NO 950/2014 OF PONNANI POLICE STATION, MALAPPURAM

Annexure A3 THE TRUE COPY OF THE JUDGMENT IN CC NO.

477/2015 OF THE JUDICIAL FIRST-CLASS MAGISTRATE COURT, PONNANI, MALAPPURAM DATED 15.11.2018