Kerala High Court
Manojan vs State Of Kerala on 21 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA,
1945
CRL.MC NO. 6952 OF 2023
AGAINST THE ORDER/JUDGMENT SC 1041/2022 OF ADDITIONAL
DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU CASES)
KOZHIKODE
PETITIONER/ACCUSED NO.10:
MANOJAN, AGED 50 YEARS, S/O.KORAN, MANGALASSERY
HOUSE, KUNIYIL PEEDIKA, VANIMAL, KOZHIKODE
DISTRICT., PIN - 673506
BY ADVS.
ZUBAIR PULIKKOOL
RAJAN I.
RESPONDENT/RESPONDENT:
STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
RENJITH TR PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 21.09.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC No.6952 of 2023
2
P.V.KUNHIKRISHNAN
---------------------
CRL.MC No.6952 of 2023
---------------------------
Dated this the 21st day of September, 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 10th accused in Crime
No.330/2011 of Valayam Police Station, which is now
pending as S.C.No.1041/2022 on the files of Additional
District & Sessions Court (Special Court for Trial for Maradu
cases), Kozhikode. The above case is charge sheeted
against the petitioner and others alleging offences
punishable under Sections 143, 145, 147, 353, 332, 153A
r/w Section 149 IPC and Sections 3 & 5 of Explosive
Substances Act.
3. The prosecution case is that the accused persons
formed themselves into an unlawful assembly and attacked
them with stone, stick, sword, bomb etc. It is submitted that
co-accused were already acquitted by the trial court as per
CRL.MC No.6952 of 2023
Annexure 2 judgment. It is submitted that, in the light of the
same, the continuation of the prosecution against the
petitioner is 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
CRL.MC No.6952 of 2023
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:-
"41. PW1, 2 and 8 had no case that they had
previous acquaintance with the accused. According
to PW1, 2 and 8 there were about 50 persons on
each side. The final report was filed only against 38
persons. The incident happened after 8.30 p.m.
According to PW1 and 2 they had seen the incident
in the head light of the vehicle. Considering the
facts such as the incident happened at night and
about 100 persons were involved in the violence it
is held that, even if there is the light of the vehicle
at the place of occurrence, it is not possible for
PW1, 2 and 8 to identify the assailants clearly at
the time of incident since they have no previous
acquaintance with the accused.
42. PW1 had not specifically identified any of the
accused before court. PW2 correctly identified
accused No.3 and PW8 clearly identified accused
No.5 before court. PW2 and 8 had no case that
they had previous acquaintance with the accused
whom they had specifically identified before court.
In this case no test identification parade was
conducted. The identification of A3 by PW2 and A5
by PW8 before court after 10 years of the incident
without a test identification parade is not reliable
since they had no previous acquaintance with A3
and A5 and they had not opportunity to clearly
identify A3 and A5 at the time of incident.
43. Regarding the identification of other accused
CRL.MC No.6952 of 2023
PW1, 2 and 8 stated that the persons standing in
the accused dock are the persons involved in the
violence. Such an omnibus identification is not
sufficient to prove the identity of the accused since
PW1, 2 and 8 had no opportunity to clearly identify
the accused who are facing trial form among the
about 100 persons who were present at the time of
incident, they had no previous acquaintance with
the accused and no test identification parade was
conducted.
44. Now the point to be considered is whether the
prosecution proved that any of the accused were
arrested from the place of occurrence. Ext.P22
series are the arrest memos as per which Afsal,
Balakrishnan, Abdul Latheef and Lineesh were
arrested. According to prosecution the incident was
on 8-12-2011 at 8.30 pm. Ext.P22 series shows
that the accused were taken into custody on 9-12-
2011 at 10.30. So Ext.P22 series shows that the
accused were not taken into custody not on the
date of incident ie on 8-12-2011 but on the next
day. In Ext.P22 series the crime number is also
mentioned. There will be no crime number in the
arrest memos if the accused were taken into
custody from the place of occurrence. The
presence of crime No. in Ext.P22 series shows that
the accused were taken into custody not before
but after the crime was registered. Ext.P22 series
disprove the case of the prosecution that the
accused named in Ext.P22 series were taken into
custody from the place of occurrence as claimed
by the prosecution. In view of the above
discussion, it is held that prosecution failed to
prove that the accused named in Ext.P22 series
were taken into custody from the place of
occurrence as claimed by the prosecution. Further
PW1, 2 and 8 had no case that the persons
arrested from the spot did any overt acts. So even
if the persons named in Ext.P22 series were
arrested from the place of occurrence it cannot be
held that those persons committed the violence or
members of unlawful assembly as claimed by the
prosecution.
45. In view of the above discussion it is held that
the evidence adduced by the prosecution is not
CRL.MC No.6952 of 2023
sufficient to prove the identity of accused beyond
reasonable doubt."
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
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
S.C.No.1041/2022 on the files of Additional District &
Sessions Court (Special Court for Trial for Maradu cases),
Kozhikode arising from Crime No.330/2011 of Valayam
Police Station are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
bng
CRL.MC No.6952 of 2023
APPENDIX OF CRL.MC 6952/2023
PETITIONER ANNEXURES
Annexure 1 THE CERTIFIED COPY OF THE FINAL REPORT
DATED 12.09.2017.
Annexure 2 THE CERTIFIED COPY OF THE JUDGMENT IN
SESSIONS CASE NO. 221/2018 ON THE FILE
OF SPECIAL ADDITIONAL SESSIONS JUDGE
(MARAD CASES), KOZHIKODE DATED
20.06.2023.
