Kathfeer @ Ali vs Linshu
2024 Latest Caselaw 26531 Ker

Citation : 2024 Latest Caselaw 26531 Ker
Judgement Date : 5 September, 2024

Kerala High Court

Kathfeer @ Ali vs Linshu on 5 September, 2024

Author: P.V. Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                         2024:KER:68141


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946

                      CRL.MC NO. 6351 OF 2017

        AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1532 OF 2015 OF

          JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE

PETITIONER/ACCUSED:

           KATHFEER @ ALI
           AGED 42 YEARS, S/O.MUHAMMED KOYA,
           THEKKEPUTHALATH HOUSE, PARAMBIL BAZAR P.O.,
           KOZHIKODE-12.


           BY ADVS.
           SRI.T.G.RAJENDRAN
           SMT.ANN SUSAN GEORGE
           SRI.T.R.TARIN
           SRI.V.A.VINOD




RESPONDENT/COMPLAINANT AND STATE:

    1      LINSHU
           AGED 36 YEARS, W/O.ABDUL AZEEZ, UNNIKORU PARAMBA,
           MANGALA PALACE, MARIKUNNU P.O.,
           KOZHIKODE-676 561.

    2      THE STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM-682 031.


           BY ADVS.
           SRI.M.MUHAMMED SHAFI FOR R1
           SMT.T.RASINI
 CRL.MC.NO.6351 OF 2017            2


                                                         2024:KER:68141




          SRI.RENJITH.T.R, SR.PP


     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.09.2024,    THE   COURT   ON       THE   SAME   DAY    PASSED   THE
FOLLOWING:
 CRL.MC.NO.6351 OF 2017           3


                                                      2024:KER:68141


                 P.V. KUNHIKRISHNAN, J.
             -------------------------------------------
                 Crl.M.C. NO.6351 OF 2017
      ---------------------------------------------------------
       Dated this the 5th day of September, 2024

                             ORDER

The petitioner is the accused in C.C. No.1532/2015 on

the file of the Judicial First Class Magistrate Court-I,

Kozhikode. He was the 6th accused in C.C. No.856/2010 on the

file of the Judicial First Class Magistrate Court-I, Kozhikode. It

was a private complaint filed by the 1 st respondent against the

petitioner and seven others. The trial court after going through

the evidence and materials discharged one of the accused and

acquitted all other accused except the petitioner. Annexure-3

is the judgment acquitting the accused. Annexure-2 is the

order by which one of the accused is discharged. In the light of

Annexure.2 and 3, it is submitted that the continuation of

prosecution against the petitioner is an abuse of process of

court. Hence, this criminal miscellaneous case.

2. Heard the learned counsel for the petitioner and

the learned counsel appearing for the 1 st respondent. This

Court perused Annexure.3 judgment by which the other co-

2024:KER:68141

accused were acquitted. It will be better to extract the

relevant portion of Annexure.3.

" 5. Points no.1 to 6 - For the sake of convenience these points can be considered together. PW1 is the defacto complainant in this case. From 16- 01-2015 onwards, this case is posted for the appearance of PW1 for cross examination. Thereafter, the case was posted on 20-02-2015, 27-03-2015, 17-06-2015 and on 03-08-2015. On all the above said posting dates PW1 was absent. Thereafter, the case was posted on 18-09-2015 with a specific direction that PW1 must be present, On 18-09-2015 PW1 was again absent and application filed. The application is dismissed. It is pertinent to note that this case is of the year 2010. But PW1 is continuously absent. Hence it can be seen that PW1 is not interested in prosecuting the matter. Hence the evidence of complainant is closed. Since PW1 is continuously absent, there is no opportunity available for the accused to cross- examine PW1. Hence the evidence of PW1 cannot be taken into consideration. Since PW1 is not cross- examined, no evidence is available before the court. Hence no scope for 313 questioning. As there is no incriminating

2024:KER:68141

evidence against A1 to 5 and 7, the complainant has miserably failed to prove the offence alleged against A1 to 5 and 7 beyond all reasonable doubt. Hence these points are found against the complainant.

5. Point no-7-In view of the finding on point no.1 to 6, accused No.1 to 5 and 7 are found not guilty for the offences punishable under sections 143, 147, 148, 427, 354, 379 r/w 149 of IPC.

are acquitted under Section 248(1) of Cr.P.C.

Bail bond executed by them stand cancelled and they are set at liberty. Since accused No.6 is absconding, case against him split up and refiled as C.C.1532/15."

3. From the above, it is clear that the trial court

acquitted the accused because PW1 refused to appear for

cross-examination. Annexure.3 judgment was confirmed by

this Court as per judgment dated 05.09.2024 in Crl.A.

No.323/2018. In such circumstances, I am of the considered

opinion that, the continuation of the proceedings against the

petitioner alone is an abuse of process of court and judicial

waste of time.

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Hence, this criminal miscellaneous case is allowed. All

further proceedings against the petitioner in C.C.

No.1532/2015 on the file of the Judicial First Class Magistrate

Court-I, Kozhikode arising from C.C. No.856/2010 of the same

court are quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SCB

2024:KER:68141

PETITIONER ANNEXURES

ANNEXURE I THE CERTIFIED TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT.

ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 22-1- 2013 IN C.C.NO.856/2010 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE.

ANNEXURE III THE CERTIFIED COPY OF THE JUDGMENT DATED 18-9-2015 IN C.C.NO.856/2010 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE.