Kerala High Court
Shafi vs Sub Inspector Of Police on 7 February, 2017
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938
Crl.MC.No. 3381 of 2016 ()
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CRA 610/2013 of SESSIONS COURT, KOZHIKODE- II
SC 237/2012 of I ADDL. SESSIONS COURT, KOZHIKODE
CRIME NO. 265/2011 OF KODUVALLY POLICE STATION,
KOZHIKODE DISTRICT
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PETITIONER(S):
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SHAFI, S/O. KUNHAHAMMED,
THAYYULLATHIL HOUSE, KATHARMALL,
KODUVALLY, KOZHIKODE.
BY ADV. SRI.O.D.SIVADAS
RESPONDENT(S)/COMPLAINANT AND STATE :
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1. SUB INSPECTOR OF POLICE
KODUVALLY POLICE STATION,
KOZHIKODE DISTRICT-673 572.
2. STATE OF KERALA REPRESENTED BY THE PUBLIC
PROSECUTOR HIGH COURT OF KERALA,
ERNAKULAM- 682 031.
*ADDL.R3 IMPLEADED :
3. HAMEEDA, D/O. ABDUL HAMEED,
CHETTIL VEEDU, THALAYAD, KOZHIKODE DISTRICT
*ADDL.R3 IS IMPLEADED AS PER ORDER DT 14/6/2016 IN
CRL.MA NO. 60832016 IN CRL.M.C. NO., 3381/2016
R1 & R2 BY PUBLIC PROSECUTOR SRI.E.C. BINEESH
R3 BY ADV. SRI.M.DINESH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07-02-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
bp
Crl.MC.No. 3381 of 2016 ()
APPENDIX
PETITIONER'S ANNEURES :
ANNEXURE A1: COPY OF THE CHARGE SHEET IN CRIME NO. 265/2011
OF KODUVALLY POLICE STATION.
ANNEXURE A2: COPY OF THE JUDGMENT DT 4/12/2013 OF THE 1ST
ADDITIONAL ASSISTANT SESSIONS COURT, KOZHIKODE
STATION IN SC NO. 237/2012.
ANNEXURE A3: COPY OF THE JUDGMENT DT 31/3/2015 OF THE
SESSIONS COURT, KOZHIKODE IN CRL. APPEAL NO.
610/2013.
ANNEXURE A4: COPY OF THE SUMMONS IN SC 1144/2015.
RESPONDENT'S ANNEXURES : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
RAJA VIJAYARAGHAVAN.V, J
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Crl.M.C. No.3381 of 2016
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Dated this the 7th day of February, 2017
O R D E R
1.The petitioner herein is the sole accused in S.C. No.1144 of 2015 on the file of the 1st Additional Assistant Sessions Court, Kozhikode. In the aforesaid case, he is being proceeded against for having committed offences punishable under sections 498A, 406, 354, 511 of 376 read with 34 of the IPC. This is a split up case from S.C. No.237 of 2012 on the file of the said court which in turn has arisen from Crime No.265 of 2011 of Koduvally Police Station.
2.Originally, final report was laid arraying as many as 6 persons as the accused, the petitioner being the 3rd accused. As the petitioner was not available for trial, the case against the rest of the accused were Crl.M.C. 3381/2016 2 proceeded with and by Annexure-A2 judgment dated 4.12.2013 all the accused except the 2nd accused were acquitted of all charges.
3.The 2nd accused was sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.2,00,000/- with a default clause. Against the finding of guilt conviction and sentence, the 2nd accused preferred Crl.Appeal No.610 of 2013 before the court of Sessions, Kozhikode. By judgment dated 31.3.2015, he was extended the benefit of doubt and was acquitted.
4.It is in the above fact scenario that this petition is filed seeking to quash the proceedings on the ground that the substratum of the case has been shattered and the continuance of proceedings as against the petitioner is an abuse of process.
5.Heard the learned counsel appearing for the petitioner Crl.M.C. 3381/2016 3 as well as the additional 3rd respondent who was later impleaded.
6.The learned counsel submits that the petitioner was unable to appear before the court below as he was not in station and that all the other accused have been acquitted of all charges. In that view of the matter, there is absolutely no reason to prosecute the petitioner any further. Referring to the decision of this Court Moosa V Sub Inspector of Police [2006 (1) KLJ 349] it is submitted that the substratum of the case has been shattered.
7.The learned counsel appearing for the 3rd respondent countered the submission of the learned counsel appearing for the petitioner and submitted that against the acquittal of the 2nd accused by the court of Sessions, Crl.Appeal (Victim) No.1109 of 2016 has been preferred before this Court and it has been Crl.M.C. 3381/2016 4 admitted. It is also submitted by the learned counsel appearing for the 3rd respondent that there is specific allegation against the petitioner herein that he had outraged the modesty of the 3rd respondent. The learned counsel relying on the judgment of this Court in Moosa (Supra) submits that it cannot be said that the very edifice of the case has been shattered.
8.I have considered the rival submissions and have gone through the materials on record. In so far as the petitioner is concerned, specific allegations have been raised by the de facto complainant in the final report. As the petitioner had absconded, there was no reason for the court to consider his defence or the allegations raised against him. As held in Moosa , even when a coaccused is acquitted in the very same trial, the other accused can be convicted if there are good reasons to do so. In other words, the acquittal of some of the Crl.M.C. 3381/2016 5 accused by itself is not a reason to bar the trial in the case of the other accused..
In view of the above facts, I find no merit in this petition. It fails and is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN.V. JUDGE vps