Muhammed Sherif vs State Of Kerala
2023 Latest Caselaw 9475 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945
                       CRL.MC NO. 6205 OF 2023
 AGAINST THE ORDER/JUDGMENT CC 626/2022 OF JUDICIAL MAGISTRATE OF
                   FIRST CLASS ,PARAPPANANGADI
PETITIONERS/ACCUSED:

    1     MUHAMMED SHERIF
          AGED 36 YEARS
          S/O. ABOOBACKER, KODINJIYATH HOUSE, KODINJI P.O.,
          PANAKKATHAYAM, MALAPPURAM DISTRICT, PIN - 676309
    2     AKBAR
          AGED 37 YEARS
          S/O. ABOOBACKER, KODINJIYATH HOUSE, KODINJI P.O.,
          PANAKKATHAYAM, MALAPPURAM DISTRICT, PIN - 676309
          BY ADV. K.P.SUDHEER

RESPONDENTS/STATE & DEFACTO COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, KOCHI, PIN - 682031
    2     STATION HOUSE OFFICER
          TIRURANGADI POLICE STATION, TIRURANGADI, MALAPPURAM
          DISTRICT, PIN - 676306
    3     MUHAMMED YOUSAF
          AGED 66 YEARS
          S/O. MOIDEENKUTTY, ILLATH HOUSE, NANNAMBRA,
          TIRURANGADI, MALAPPURAM DISTRICT, PIN - 676306
    4     ABDUL AZEEZ
          AGED 57 YEARS
          S/O. MOIDEENKUTTY, ILLATH HOUSE, NANNAMBRA,
          TIRURANGADI, MALAPPURAM DISTRICT, PIN - 676306
          BY ADV. SRI.RENJITH T.R., PP
          SRI.SHERRY M.V.

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.6205 of 2023


                            2




            P.V.KUNHIKRISHNAN, J.
           ------------------------------
            Crl.M.C.No.6205 of 2023
   ----------------------------------------------
  Dated this the 05th 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. Petitioners are accused Nos.1 and 2 in

Crime No.5/2015 of Tirurangadi Police Station. The

above case is registered against the petitioners and

others alleging offences punishable under Sections

143, 147, 341, 323, 427, 294(b), 427, 506(i) r/w

Section 149 of the IPC.

3. The said crime was registered based on the

complaint given by the 3rd respondent. Annexure A1 Crl.M.C.No.6205 of 2023

is the First Information Report and Annexure A2 is

the Final Report. The case was registered as C.C.

No.225/2015 on the file of the Judicial First Class

Magistrate's Court-I, Parappanangadi. During the

pendency of the said case, the disputes were

settled by the parties, is the submission. Based on

the settlement, the learned Magistrate acquitted

accused Nos. 3 to 5 as per Annexure A3 judgment.

The case against the petitioners herein were split

up and is now pending as C.C. No.626/2022. In

view of the settlement and also in the light of the

acquittal of the co-accused, this Crl.M.C. is filed.

4. Heard counsel for the petitioners and the

Public Prosecutor. The counsel for the petitioners

submitted that the co-accused were already

acquitted by the trial court and the continuation of

the trial against the petitioners will be an abuse of Crl.M.C.No.6205 of 2023

process of court because the substratum of the

prosecution case is shattered. The Public Prosecutor

submitted that the petitioners have 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 the proceedings. After going Crl.M.C.No.6205 of 2023

through the judgment of the trial court, I am of the

considered opinion that the continuation of the

prosecution against the petitioners will be an abuse

of process of court. It will be beneficial to extract

the relevant portion of Annexure A3 judgment by

which the co-accused were acquitted:

"7]. Defacto complainant is examined as PW1. According to him on the alleged day a group of persons attacked him, PW2 and PW1 and they got injured. He gave first information statement to police in respect of the alleged incident. First information statement is marked as Ext.P1. In Court he denied the facts stated in the complaint and deposed that the assailants were not known to him. He further stated that matter settled out of Court. Thus PW1 turned hostile to prosecution case.

8]. PW2 is the injured in this case. He deposed in tune with PW1. He further deposed that matter settled out of Court. Hence he turned hostile to prosecution case. PW3 is the occurrence witnesses. He also did not support the prosecution case. Hence he turned hostile to prosecution case.

Crl.M.C.No.6205 of 2023

The learned Assistant Public Prosecutor was given ample opportunity to put questions that could be asked in cross-examination. But he could not bring anything to prove the incident. Therefore the prosecution failed to prove the case beyond reasonable doubt. Hence points No. 1 to 7 are answered against the prosecution. POINT No.8 In the light of discussion on points No.1 to 7, A3 to A5 found not guilty of alleged offences, hence point No. 11 found against prosecution.

In the result, accused No. 3 to 5 are found not guilty of offences punishable u/s 143,147,341,323,294(b), 427, 506(i) r/w 149 IPC. A1 to A5 acquitted under section 255[1] CrPC. Their bail bonds stands cancelled and they are set at liberty. Case against A1 and A2 split up and refiled as CC 626/2022."

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 Crl.M.C.No.6205 of 2023

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

petitioners in C.C.No.626 of 2022 on the file of the

Judicial First Class Magistrate's Court-I,

Parappanangadi arising from Crime No.5/2015 of

Tirurangadi Police Station, Malappuram are

quashed.

Sd/-

                                   P.V.KUNHIKRISHNAN
DM                                        JUDGE
 Crl.M.C.No.6205 of 2023






             APPENDIX OF CRL.MC 6205/2023

PETITIONER ANNEXURES
ANNEXURE A 1       CERTIFIED     COPY     OF   FIRST
                   INFORMATION      REPORT     DATED

02.01.2015 IN CRIME NO. 5/2015 OF TIRURANGADI POLICE STATION.

ANNEXURE A 2 CERTIFIED COPY OF FINAL REPORT DATED 18.1.2015 IN CRIME NO.

                   5/2015    OF   TIRURANGADI    POLICE
                   STATION.
ANNEXURE A 3       CERTIFIED COPY OF JUDGMENT DATED
                   28.3.2022.     IN THIS     REGARD

CERTIFIED COPY OF JUDGMENT DATED 28.3.2022 IN C.C. NO. 225/2015 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, PARAPPANANGADI ANNEXURE A 4 AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT DATED 27.07.2023 ANNEXURE A 5 AFFIDAVIT EXECUTED BY THE 4TH RESPONDENT DATED 27.7.2023

RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE