Allowed

Moideen v. the State of Kerala

Kerala HC27 May 2016Crl.MC/2077/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an application under Section 482 CrPC to quash pending criminal proceedings against the petitioner. The court held that the substratum of the case was destroyed due to the adverse stance of the main injured witness and the acquittal of other accused in related proceedings.

What did the court decide?

Criminal proceedings pending against the petitioner in L.P.No.14 of 1997 are quashed.

Moideen Vs the State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938

¶5

Crl.MC.No. 2077 of 2016 ()

¶6

L.P. NO.14/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PONNANI. CRIME NO. 1/1997 OF CHANGARAMKULAM POLICE STATION.

¶7

PETITIONER/ACCUSED:

¶8

MOIDEEN, S/O. MOIDUNNI MOULAVI, THALAPPIL HOUSE, ALAMCODE AMSOM, PANTHAVOOR DESOM, MALAPPURAM DISTRICT.

¶9

BY ADVS.SRI.BABU S. NAIR, SRI.R.RANJITH (MANJERI).

¶10

RESPONDENT/STATE:

¶11

THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031, FOR THE SUB INSPECTOR OF POLICE, CHANGARAMKULAM POLICE STATION, MALAPPURAM DISTRICT.

¶12

BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.

¶13

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶14

rs.

¶15

Crl.MC.No. 2077 of 2016

¶16

APPENDIX

¶17

PETITIONER'S ANNEXURES:-

¶18

ANNEX. A TRUE COPY OF THE FINAL REPORT/CHARGE IN CRIME NO.1/1997 OF THE CHANGARAMKULAM POLICE STATION.

¶19

ANNEX. B TRUE COPY OF THE JUDGMENT DATED 24.11.2003 OF THE SESSIONS COURT, MANJERI IN S.C.NO.410/2011.

¶20

ANNEX. C TRUE COPY OF THE JUDGMENT DATED 29.01.2010 OF THE SESSIONS COURT, MANJERI IN SC NO.187/2010.

¶21

ANNEX. D TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE DEFACTO COMPLAINANT DATED 16.08.2014.

¶22

RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

RAJA VIJAYARAGHAVAN.V., J

¶27

¶28

Crl.M.C. No. 2077 of 2016

¶29

- - - - Dated 27^th May, 2016

¶30

¶31

ORDER

¶32

This petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code' for short) seeking invocation of powers of this Court to quash the pending criminal proceedings. The petitioner herein is the 5^th accused in crime No.1 of 1997 of the Changaramkulam Police Station. The aforesaid crime was registered at the instance of one Vasu for the offences punishable under Sections 143, 147, 148, 452, 324, 326, 307 and 427 read with Section 149 of the IPC.

¶33

After completion of investigation, final report was laid before the jurisdictional Magistrate. The case was taken cognizance as S.C.No.410 of 2001 for trial and disposal. Accused Nos.1, 6, 9, 10 and 11 appeared before court and faced trial. As per Annexure B judgment dated 24.11.2003 the learned Addl. Sessions Judge came to the conclusion that the case of the prosecution did not appear to be cogent

¶34

Crl.M.C. No.2077 of 2016 -2-

¶35

and convincing and therefore the benefit of doubt was extended to the accused persons. The accused were found not guilty and were acquitted under Section 235(1) of the Code.

¶36

Later, accused Nos. 2 and 7 in the original crime surrendered and they were committed to the Court of Sessions. The case against them were proceeded with by the Addl. Sessions Judge in S.C.No.187 of 2010 and as per judgment dated 29.1.2013 it was concluded that evidence was deficient to connect the accused with the crime and the accused were accquitted under Section 232 of the Code.

¶37

It is submitted that the case against the petitioners have been included in the list of long pending cases and the same is numbered as L.P. No. 14 of 1997 on the files of the Judicial magistrate of First Class, Ponnani. The petitioner has approached this Court by filing this petition raising the contention that the substratum of the case has been destroyed and that no purpose would be served in subjecting the petitioner to undergo the ordeal of a trial.

¶38

Crl.M.C. No.2077 of 2016 -3-

¶39

Referring to Annexures B and C judgments, the learned counsel appearing for the petitioner submitted that there was no evidence whatsoever to connect the accused in the crime. It is also submitted by the learned counsel referring to paragraph No.10 of Annexure C that the main injured in the case has not supported the prosecution case and he had gone to the extent of stating that he could not identify the assailants.

¶40

The learned Public Prosecutor on instructions submits that the petitioner was an absconding accused. However, it is fairly submitted that he is not a person with criminal antecedents.

¶41

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

¶42

KLT 552) a Full Bench of this Court had occassion to hold in

¶43

para 50 of the said Judgement in the following manner:

¶44

“50 .................. At the same time, the judgment rendered in the case of a coaccused 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

¶45

Crl.M.C. No.2077 of 2016

¶46

-4-

¶47

any relief to quash the proceedings and thus bar the trial itself. It may however, be a case where the very substratum of the case is lost which may be an exception to this rule. However, as held by the apex court it has to be held that 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 accused by itself is not a reason to bar the trial in the case of the other accused.”

¶48

In Ashraf Kancheriyil v. State of Kerala (2011

¶49

(2) KHC 812) it was held by this Court in the facts of that case that that when substratum of the case is destroyed,

¶50

there is no point in pursuing with the prosecution as against the other accused.

¶51

In Ashraf Kancheriyil v. State of Kerala (2011

¶52

(2) KHC 812) it was held by this Court in the facts of that case that that when substratum of the case is destroyed, there is no point in pursuing with the prosecution as against the other accused.

¶53

Crl.M.C. No.2077 of 2016 -5-

¶54

I have gone through Annexures B and C judgments of the Additional Sessions Judge. In Annexure C judgment the learned Sessions Judge has taken specific note of the fact that PW9 Vasu, who is the injured, had turned adverse to the prosecution and he had gone to the extent of stating that he could not even identify his assailants. The wife and daughter of PW8, who was examined as PW10 and PW11 also did not support the prosecution case. Though the judgment rendered in the case of a coaccused and the reasoning of the judgment contained 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 is an exception to the above rule.

¶55

I have no doubt in my mind that the substratum of the case has been destroyed and the continued prosecution of the petitioner will not serve any purpose. I am, therefore, of the view that the criminal proceedings pending

¶56

Crl.M.C. No.2077 of 2016 -6-

¶57

as against the petitioner can be quashed by invoking the inherent powers of this Court under Section 482 of the Code.

¶58

In the result, this application is allowed. All further proceedings against petitioner herein in L.P.No.14 of 1997 on the files of the Judicial Magistrate of First Class, Ponnani which has arisen from Crime No. 1 of 1997 of Changaramkulam Police Station shall stand quashed.

¶59

Sd/- RAJA VIJAYARAGHAVAN.V., JUDGE

¶60

kp/-28.5.16

Moideen v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Moideen v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Muhammed Khalid Ansar @ Ansar Vs State of Kerala

Thomas K.G Vs Muhammed Nissar

Ratheesh Vs State of Kerala

Praveen K.F. @ Franklin Vs the State of Kerala

Manju Vs State of Kerala

P.K.Skaria Vs State of Kerala