Allowed

Abdurasak v. State of Kerala

Kerala HC23 Jun 2016Crl.MC/1609/2016

Case brief

AI extract

What is this about?

Allowed a petition to quash criminal proceedings against the petitioner, who was the fifth accused. The court held that continuing the trial would be a futile exercise as the prosecution failed to establish the subsistence of the offence, especially after acquittals of co-accused.

What did the court decide?

All further proceedings against the petitioner in CC.No.783 of 2014 on the files of the Judicial First Class Magistrate Court – II, Manjeri shall stand quashed.

Abdurasak Vs State of Kerala — Quashing and FIR | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938

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Crl.MC.No. 1609 of 2016 ()

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CC. NO.783/2014 IN C.C.381/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MANJERI. OR. NO. 3/2009 OF KARUVARAKUNDU FOREST STATION, MALAPPURAM DISTRICT.

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PETITIONER/ACCUSED:

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ABDURASAK, S/O. ABDU , KAVUMKUNDU, THAZHEKODE VILLAGE, PERINTALMANNA, MALAPPURAM DISTRICT.

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BY ADVS.SRI.P.SAMSUDIN, SRI.JITHIN LUKOSE.

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RESPONDENT/STATE:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031, (FOREST RANGE OFFICER, KARUVARAKUNDU, MALAPPURAM DISTRICT).

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BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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Crl.MC.No. 1609 of 2016

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE A1A TRUE COPY OF THE CHARGE SHEET IN OR.3/2009 OF KARUVARAKUNDU FOREST STATION.

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ANNEXURE A2TRUE COPY OF THE ORDER DATED 30-12-2014 IN CC.381/2009 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MANJERI.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

RAJA VIJAYARAGHAVAN, V., J.

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Crl.M.C. No.1609 of 2016

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Dated this the 23^rd day of June, 2016

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O R D E R

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~~~~~~~~

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1.The petitioner herein is the 5^th accused in O.R.No.3 of 2009 of Karuvarakundu Forest Station. He along with four others are alleged to have committed the offence punishable under Section 27(1)(b)(e)(iv) of the Kerala Forest Act, 1961 read with Section 4 of the Kerala Private Forest (Vesting and Assignment) Act 1971.

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2.The gist of the prosecution allegation is that, on 25.1.2009, the petitioner along with the other accused wrongfully trespassed into the vested forest and destroyed 4000 saplings of various varieties.

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3.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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Crl.M.C.No.1609/2016 -2-

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4.The learned counsel referring to Annexure-A2 judgment in C.C.No.381 of 2009 submits that all the other accused except the petitioner were found not guilty of the offence and were acquitted under Section 248(1) of the Cr.P.C. In view of the above, continuation of prosecution against the petitioner is nothing but waste of time. The learned counsel also points out that the substratum of the case has been shattered.

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5.The learned Public Prosecutor, on the other hand, refuted the submission of the learned counsel and submits that the order has been passed on merits and the petitioner, being an absconding accused, cannot be granted any benefits.

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6.I have considered the rival submissions. I have also perused Annexure-A2 judgment. Annexure-A2 judgment reveals that the learned Magistrate, after meticulous appreciation of the evidence, came to the conclusion that

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Crl.M.C.No.1609/2016 -3-

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no evidence was let in by the prosecution to prove as to how the damage was calculated or fixed. After analysing the evidence, it was held that the prosecution had not produced any notification to establish the exact boundary of the forest area. Further in paragraph No.12 of the judgment, the learned Magistrate has considered the evidence of PWs 1 to 4 and have concluded that their evidence would not reveal as to who had set fire to the forest. None of the witnesses had spoken about the presence of the accused. The learned Magistrate also had held that no evidence was adduced by the prosecution to prove that the area from where the saplings were destroyed by the accused were portion of the notified forest land. It was based on these clinching aspects that the learned Magistrate had finally concluded that the prosecution had failed to prove the case against the accused beyond reasonable doubt and the benefit of doubt

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Crl.M.C.No.1609/2016 -4-

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was extended to the accused.

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7.In Moosa v. Sub Inspector of Police (2006 (1) KLT

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552) a Full Bench of this Court had occasion to hold that though the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself, a case where the very substratum of the case is lost which may be an exception to this rule.

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8.I am of the firm view that no purpose is going to be served by directing the petitioner to face the trial at this stage . It can only be a futile exercise and the only purpose that will be served is to gnaw into precious time during which more productive work can be done by the court below. The prospects of conviction is extremely remote owing to the acquittal of the co accused.

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Crl.M.C.No.1609/2016 -5-

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In the result, this petition will stand allowed. All further proceedings against petitioner in C.C.No.783 of 2014 on the files of the Judicial First Class Magistrate Court – II, Manjeri, shall stand quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN, V. JUDGE

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Ps/24/6/16 xxx

Abdurasak v. State of Kerala

Case brief

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Abdurasak v. State of Kerala

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