Kerala High Court
Habeeb vs State Of Kerala on 8 October, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935
Crl.MC.No. 1559 of 2013 ()
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LP.144/2012 of J.M.F.C., KARUNAGAPPALLY
CRIME NO. 42/1992 OF OACHIRA POLICE STATION , KOLLAM
PETITIONER(S)/6TH ACCUSED:-:
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HABEEB,
S/O.ABDUL KHARIM
MANAKKATTU CHIRAYIL (PUNCHAVELUMBIL) KOCHUTHEKKUM MURI
KRISHNAPURAM, OACHIRA, KOLLAM DISTRICT.
BY ADV. SRI.S.ABHILASH
RESPONDENT/ COMPLAINANTAND/ STATE:-:
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STATE OF KERALA,
THROUGH THE DEPUTY SUPERINTENDENT OF POLICE
KARUNAGAPPALLY, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
10-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 1559 of 2013 ()
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APPENDIX
PETITIONER'S EXHIBITS
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ANNEXURE 1. THE COPY OF F.I.R IN CRIME NO.42/1992 OF OACHIRA POLICE
STATION.
ANNEXURE 2. THE COPY OF FINAL REPORT FILED BY THE 2ND RESPONDENT IN
CRIME NO.42/1992 OF OACHIRA POLICE STATION.
ANNEXURE 3. THE COPY OF COMMON JUDGMENT PASSED BY THE ASST. SESSIONS
COURT, KOLLAM IN S.C.NO.216/1995, S.C.NO.8/1996 AND
S.C.NO.25/1997 DATED 08.10.2002.
ANNEXURE 4. THE COPY OF JUDGMENT IN CRL.M.C.NO.2367/2005.
ANNEXURE 5. THE COPY OF COMMON ORDER PASSED IN CRL.M.C.NO.1690/2011
AND 1713/2011 DATED 13.06.2011.
ANNEXURE 6. THE COPY OF ORDER IN CRL.M.C.NO.876/2012 DATED 25.05.2012.
RESPONDENT(S)' EXHIBITS: NIL
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// TRUE COPY //
TKS
P.S. TO JUDGE
C.T.RAVIKUMAR, J.
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Crl.M.C.No.1559 of 2013
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Dated 10th April, 2013
ORDER
The petitioner is the 64th accused in Crime No.42 of 1992 of Oachira Police Station registered alleging commission of offences punishable under Sections 143, 147, 148, 324, 332, 333, 307 and 120B read with Section 149 of the Indian Penal Code and Section 3(2)
(a) of the P.D.P.P Act. Some of the co-accused of the petitioner stood the trial in S.C.Nos.216 of 1995, 8 of 1996 and 25 of 1997. Those Sessions Cases were tried jointly and Annexure-3 is the judgment of acquittal passed by the Court of Additional Assistant Sessions Judge, Kollam in respect of his co-accused who stood the trial in the said sessions cases. The petitioner herein was then absconding and therefore the case as against him was split up and it was refiled. It was included in the list of long pending cases as L.P.No.144 of 2012. In the meanwhile, certain other co-accused of the petitioner who were also absconding like the petitioner approached this Court seeking the quashment of criminal proceedings pending against them arising from Crime No.42 of 1992 of Oachira Police Station. Accused Nos.8, 31, 66 and 71 moved this Court by filing Crl.M.C.No.2367 of 2005 and as per Annexure-4 order the criminal proceedings against them in S.C.No.206 Crl.M.C.1559/2013 2 of 2003, a split up case, on the file of the Court of Additional Assistant Sessions Judge, Kollam were quashed. Yet another co-accused who was absconding like the petitioner by name Aboobacker Kunju Shaji moved this Court by filing Crl.M.C.No.1690 of 2011 and the committal proceedings pending against him in C.P.No.67 of 2000 before the Court of Judicial First Class Magistrate, Karunagappally were quashed by this Court as per Annexure-5 order. The 45th accused in the aforesaid crime who was also then absconding approached this Court by filing Crl.M.C.No.876 of 2012 seeking quashment of the proceedings pending against him in C.P.No.167 of 2011 on the file of the Court of Judicial First Class Magistrate, Karunagappally and as per Annexure-6 order dated 25.5.2012 that petition was allowed and the criminal proceedings against him in C.P.167 of 2011 were quashed. As noticed hereinbefore, the petitioner is the 64th accused in the aforesaid crime and like the petitioners in Crl.M.C.Nos.1690 of 2011 and 876 of 2012 the petitioner was also absconding when some of his co-accused faced the trial in S.C.Nos.216 of 1995, 8 of 1996 and 25 of 1997 which ultimately culminated in a judgment of acquittal as per Annexure-3. This petition is filed seeking quashment of the proceedings against the petitioner in L.P.No.144 of 2012 (C.P.No.167/2011) on the file of the Court of Crl.M.C.1559/2013 3 Judicial First Class Magistrate, Karunagappally on the strength of Annexures 3 to 6.
2. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor.
3. As noticed hereinbefore, Annexure-3 is the judgment of acquittal passed by the Court of Additional Assistant Sessions Judge, Kollam in respect of some of the co-accused of the petitioner. In the light of the Full Bench decision of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552 (F.B.)) a judgment of acquittal of a co- accused would not and could not act as a bar for the subsequent trial of an absconding accused. The Full Bench carved out an exception in paragraph 50 of the said judgment. It was held therein that in a case where with the pronouncement of a judgment of acquittal in respect of certain co-accused if the very substratum of the prosecution case is lost that would constitute an exception to the law laid down in that case. The learned counsel for the petitioner submits that the case of the petitioner herein falls squarely within the exception carved out by the Full Bench in Moosa's case (supra). The learned counsel also drew my attention to Crl.M.C.1559/2013 4 Annexures 4, 5 and 6. As per those orders this Court accepted the contentions of the respective petitioners therein who are also accused in Crime No.42 of 1992 of Oachira Police Station and were absconding like the petitioner. This Court as per Annexures 4, 5 and 6 evidently accepted the contentions of the respective petitioners therein that by the pronouncement of Annexure-3 judgment the very substratum of the prosecution case in Crime No.42 of 1992 of Oachira Police Station is lost. In the said orders, it was observed that allowing continuation of criminal proceedings against the respective petitioners would not be in the interest of justice as in the light of Annexure-3 judgment herein viz., the judgment in S.C.Nos.216 of 1995, 8 of 1996 and 25 of 1997 no fruitful purpose could be served by allowing continuance of the criminal proceedings against the respective petitioners. It is also to be noted that the incident in this case which ultimately led to the registration of the aforesaid crime occurred in the year 1992. It was taking into account of the aforesaid aspects that relying on Annexure-3 judgment this Court as per Annexures 4, 5 and 6 quashed the proceedings pending against some of the co-accused of the petitioner. I am of the view that in the circumstances, there is no reason for taking a view different from the view already taken by this Court in Annexures 4 to 6. Crl.M.C.1559/2013 5
Resultantly, this Crl.M.C. is allowed. Annexure-1 F.I.R. in Crime No.42 of 1992 of Oachira Police Station to the extent it pertains to the petitioner and also further proceedings pursuant thereto, as against the petitioner, in L.P.No.144 of 2012 (C.P.No.167/2011) pending before the Court of Judicial First Class Magistrate, Karunagappally are hereby quashed.
Sd/-
C.T.RAVIKUMAR Judge TKS