Kerala High Court
Shibin E.K vs State Of Kerala
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936
Crl.MC.No. 3708 of 2014
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AGAINST THE ORDER/JUDGMENT IN CC 1579/2013 of J.M.F.C.-II, KANNUR
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PETITIONER(S)/ACCUSED 3 AND 4:
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SHIBIN E.K,
S/O.PAVITHRAN, CHAPPI VILLA, EENTHOD,
AROLI P.O., KANNUR.
BY ADV. SRI.LIJIN THAMBAN
RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT 2-5:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
2. KIRAN RAJ,
S/O.RAJAN, SANDRA NIVAS, PEELERI KANDAL,
KANNUR-670003.
3. LIJIN PRAKASH,
S/O.PRAKASHAN PALIYAPARAMBIL HOUSE, KOTTIYOOR,
KANNUR-670003.
4. SHIBI D.,
S/O.RAJAN, PAZHAYAKKAN HOUSE, KARINGALKKUZHI,
KANNUR-670003.
5. SHIBIN P.
S/O.SARVAJNAN, MOOLAYA HOUSE, KANTHAL BAKKALA,
KANNUR-670003.
R1 BY PUBLIC PROSECUTOR SMT.S.HYMA
R2-R5 BY ADVS. SRI.SANJAY THAMPI
SRI.M.RETHEESHKUMAR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 09-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
Crl.MC.No. 3708 of 2014
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APPENDIX
PETITIONERS' ANNEXURES
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A1: CERTIFIED COPY OF JUDGMENT IN CC.384/12 OF JFCM(II) KANNUR DATED
21/10/13
A2: ORDER OF THIS HON'BLE COURT IN CRL.MC.3094 DATED 30/6/2014.
RESPONDENTS' ANNEXURES
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K.RAMAKRISHNAN, J.
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CRL.M.C.NO.3708 OF 2014
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Dated this the 9th day of July, 2014
ORDER
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This Criminal petition is filed by the fourth accused in crime No.990/2011 and second accused in CC.No.1579/2013 of Judicial First Class Magistrate Court-II, Kannur, to quash the proceedings under section 482 of Code of criminal procedure.
2. It is alleged in the petition that the petitioner was arrayed as fourth accused in Crime No.990/2011 of Valapattanam police station which was registered on the basis of statement given by the defacto complainant alleging offences under section 143, 147, 452, 323 and r/w 149 of Indian Penal Code which was originally taken on file as CC.384/2012 on the file of the Judicial First Class Magistrate Court-II, Kannur. Except accused numbers 3 and 4 who is the petitioner herein other accused numbers 1 and 2 appeared and they faced the trial and they were acquitted by judgment dated 21.10.2013. The case against original accused numbers 3 and 4 was split up and refiled as CC.1579/2014. None of the witnesses supported of the case of the prosecution as the matter was settled between the parties in the trial of the case in which accused Nos. 1 and 2 were acquitted and no purpose will be served by allowing the prosecution to continue as he is entitled to get the CRL.M.C.NO.3708 OF 2014 2 benefit of acquittal of those accused persons in this case. So the petitioner has filed the above application seeking the following relief:-
1. "Direct to acquit the petitioenr herein in CC.No.1579/2013 pending before JFCM(II) Kannur on the benefit of Annexure A1 Judgment.
2. To quash all proceedings against the petitioner herein in CC.No.1579/2013 pending before JFCM(II) Kannur on the benefit of Annexure A1 Judgment".
3. Respondents 2 to 5 appeared through cousnel and submitted that they have settled the issue with the petitioner and in view of the fact that other two accused persons were acquitted, they don't want to prosecute the case against the petitioner also. They have filed affidavit stating this fact.
4. The counsel for the petitioner submitted that in view of the settlement, there is no possibility of conviction and so he prayed for allowing the application.
5. The application was opposed by the learned Public prosecutor on the ground that he was an absconding accused and the power under section 482 cannot be invoked in this case and he is also an accused in another case.
6. It is an admitted fact that the petitioner was arrayed as fourth accused in Crime No.990/2011 of Valapattanam police station and after investigation, final report was filed alleging CRL.M.C.NO.3708 OF 2014 3 offences under section 143, 147, 452, 323 and r/w 149 of Indian Penal Code against four persons and others and it was originally taken on file as CC.No.384/2012 and accused numbers 1 and 2 appeared and they faced trial and it was ended in acquittal as per judgment dated 21.10.2013. Since the present petitioner and third accused did not appear the case against them was split up and refiled as CC.1579/2013.
Thereafter, the present petitioner appeared before court and he was released on bail and third accused did not appear so far. It is seen from the judgment in CC.384/2012 that the injured witnesses who were examined as PWs 2 to 4 turned hostile stating that they could not identify the assailants and the matter was settled. It was on that basis the learned Magistrate found that the prosecution failed to prove the identify the assailants and given that benefit and acquitted them. The injured witnesses also come before this court through cousnel and now stated, stating affidavit that they have settled the issue.
7. In the decision reported in (Moosa Vs. Sub Inspector of Police) 2006 (1) KLT 552, the Full Bench of this court has held that merely because some of the accused persons who faced trial were acquitted is not a ground to acquit the co-accused who did not face the trial. But at the same time, in the same decision, it has been held that if the CRL.M.C.NO.3708 OF 2014 4 foundation of the prosecution case has been shattered in the earlier case and proceeding with the subsequent case against other accused persons will not serve any purpose, then that benefit can be given to the accused who did not face the trial invoking the power under section 482 of Code of Criminal Procedure and the case against the other accused can be quashed. In this case in view of the fact that none of the witnesses including the injured had not support the case of the prosecution and none of the witnesses identified the assailants and also deposed before the court below, that it is not possible for them to identify also, there is no purpose will be served by allowing this case also to proceed with as that will amount to only wastage of the judicial time and abuse of process of court only. So considering the circumstances and also applying the above principles, this court feels that the case against the present petitioner giving the benefit of acquittal of the accused numbers 1 and 2 on the basis of the fact that, the foundation of the prosecution case itself has been shacked as none of the witnesses supported the case of the prosecution, this court feels that the power under section 482 of Code of Criminal procedure can be invoked and further proceedings in CC.1579/2013 pending before the Judicial First Class Magistrate Court-II, Kannur can be quashed as against the petitioner. CRL.M.C.NO.3708 OF 2014 5
So the petition is allowed and further proceedings in CC.1579/2013 (Crime No.990/2011 of Valapattanam police station) pending before the Judicial First Class Magistrate Court- II, Kannur as against the petitioner is quashed.
Office is directed to communicate this order to the concerned court immediately.
sd/-
K.RAMAKRISHNAN, JUDGE R.AV