Kerala High Court
Betty K.Nair 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. 1652 OF 2022
PETITIONER/S:
BETTY K.NAIR, AGED 44 YEARS,KRISHNANDAM VEEDU,
PANDIRIKKAL PADINJATTATHIL,TRA-19,
THIRUMULLAVARAM P.O., KOLLAM, PIN - 691012
BY ADVS.
B.MOHANLAL
P.S.PREETHA
SHINE N.S
KARTHIK J SEKHAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER,
KOLLAM EAST POLICE STATION
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SANGEETHA RAJ PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 21.09.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
-2-
Crl.M.C No. 1652 of 2022
P.V.KUNHIKRISHNAN, J.
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Crl.M.C No. 1652 of 2022
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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 accused in SC No.463 of 2007 on the file
of the Additional District and Sessions Court (Adhoc)-I, Kollam
arising from Crime No.549 of 2003 of Kollam East Police Station.
The above case is charge sheeted against the petitioner and others
alleging offences punishable under Section 395 IPC.
3. The prosecution case is that on 19.07.2003 in order to commit
robbery, the accused formed themselves near Kollam Cantonment
Madeena Lodge and the 1st accused tried to take currency notes from
the hip of one Mr.Basha, who accompanied along with the de facto
complainant and when he resisted the same, accused assaulted him
and took away the money and thus committed the offence.
Crl.M.C No. 1652 of 2022
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 as evident by Annexure A4 order
and the continuation of the trial against the petitioner/s 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
Crl.M.C No. 1652 of 2022
continuation of the prosecution against the petitioner/s 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:
"9. PW.1 deposed that he does not know CW.1 and he did
not see the incident. He admits that the Investigating
Officer never questioned him and he does not know the
accused also. PW.2 also deposed in tune with PW.1. So
the evidence of Pws.1 and 2 are not enough to connect A2
with the alleged offence. PW.3 is the attester to Ext.P1
Scene Mahazar. PW.4 is the attester to Ext.P2 Seizure
Mahazar. PW.5 and 6 are the attestors to Ext.P3 Seizure
Mahazar. Pws.7 and 8 are the attestors to Ext.P4 Seizure
Mahazar. PW.10 is the Investigating Officer deposed that
he prepared Ext.P1 Scene Mahazar, seized the motor-cycle
through Ext.P2 mahazar. He arrested A1 and on the
strength of the confession recovered currency through
Ext.P4 seizure mahazar. He arrested A2 and on the
strength of the confession he recovered currency through
Ext.P3 mahazar. On revealing the name and address of
the accused, he prepared Ext.P5 Report. The Inspection
memo, Arrest Memo and Custody Memo are marked as
Ext.P7 to P11. He admits that he is not remember the
persons who were arrested by him. PW.10 deposed that
after verifying the records he preferred the charge. So
what emerges from the appreciation is that none of the
witnesses deposed against A2. Being an offence of this
nature what is expected from the prosecution is to prove
the identity of the culprit as the accused and also to bring
out corresponding overt act. Here though these witnesses
Crl.M.C No. 1652 of 2022
are examined the prosecution has failed to bring out these
aspects which in turn fully disturbed the case of the
prosecution. Though the prosecution asserts that due to
the act of these accused Cws 1 and 2 sustained injuries
nothing worthwhile is available to believe that they were
attended by doctor. Unless and until, Cws 1 and 2 are
examined it is not safe to uphold the case of the
prosecution. The evidence available is thus not sufficient
to connect A2 with the offence alleged against him. I am
further satisfied that even if the remaining witnesses are
examined that will not improve the case any further and
Cws.1 and 2 were not examined. Therefore, without
hesitation hold that the available evidence is not sufficient
in order to believe that A2 had committed the offence
alleged against him. Hence, the point is answered
accordingly.
In the result, A2 is acquitted u/s.232 of Cr.P.C.
Cancelling the bail, he is set at liberty."
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.
Crl.M.C No. 1652 of 2022
Hence this Criminal Miscellaneous Case is allowed. All further
proceedings in SC No.463 of 2007 on the file of the Additional
District and Sessions Court (Adhoc)-I, Kollam arising from Crime
No.549 of 2003 of Kollam East Police Station, as against the
petitioner are quashed. sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
Crl.M.C No. 1652 of 2022
APPENDIX OF CRL.MC 1652/2022
PETITIONER ANNEXURES
Annexure1 THE COPY OF THE CERTIFICATE ISSUED BY
THE DRUGS CONTROLLER, KOLLAM DATED
30.01.2012 AND THE DECLARATION DATED
05.02.2015 OF M/S.AJAY PHARMA
Annexure2 THE CERTIFIED COPY OF THE FIR AND FIS
IN CRIME NO.549/2003 OF KOLLAM EAST
POLICE STATION.
Annexure3 THE CERTIFIED COPY OF THE FINAL REPORT
IN CRIME NO.549/2003 OF KOLLAM EAST
POLICE STATION PENDING AS
S.C.NO.463/2007 BEFORE THE ADDITIONAL
DISTRICT & SESSIONS COURT (ADHOC) I,
KOLLAM
Annexure4 THE TRUE COPY OF THE JUDGMENT DATED
13/09/2012 IN S.C.NO.463/2007 OF THE
ADDITIONAL DISTRICT & SESSIONS JUDGE
(ADHOC) I, KOLLAM
