Allowed

Vittal Rai v. State of Kerala

Kerala HC29 Jun 2016Crl.MC/2538/2016

Case brief

AI extract

What is this about?

This single judge judgment allowed a plea to quash criminal proceedings against accused petitioners. Relying on the acquittal of co-accused and the inability of witnesses to identify them after a political dispute was resolved, the court held that the trial's substratum was lost.

What did the court decide?

All further proceedings against the petitioners in C.C. No. 437 of 2015 shall stand quashed.

Vittal Rai 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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WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938

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Crl.MC.No. 2538 of 2016 ()

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--------------------------CC.NO.437/2015 AND 1481/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KASARAGOD

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CRIME NO. 35/2009 OF BADIYADUKA POLICE STATION, KASARAGOD DISTRICT

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PETITIONER/ACCUSED 3 & 4 :

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1. VITTAL RAI AGED 35 YEARS, S/O. THIMANNA RAI, MANDAMPADY HOUSE, ANGADIMUGAR, KASARAGOD.

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2. SURESH K.M., AGED 40 YERS, S/O. AYITHAPPA POOJARI, BADOORKARI HOUSE, BADOOR VILLAGE, KASARAGOD.

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BY ADVS.SRI.I.V.PRAMOD SRI.K.V.SASIDHARAN

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RESPONDENT/COMPLAINANT & STATE :

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN - 682 031.

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BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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...2/-

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Crl.MC.No. 2538 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE A1 A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 35/2009 OF THE BADIYADUKA POLICE STATION DATED 25/7/2009.

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ANNEXURE A2 CERTIFIED COPY OF THE JUDGMENT IN C.C NO 865/2009 OF JFCM-1, KASARAGOD DATED 6/3/2015.

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RESPONDENT(S)' ANNEXURES : NIL

//TRUE COPY//

P.A. TO JUDGE

RAJA VIJAYARAGHAVAN V., J.

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===================== Crl. M.C. No.2538 of 2016

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======================= Dated this the 29^th day of June, 2016

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ORDER

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The petitioners are the accused Nos.1 and 2 in CC No.437 of 2015 on the file of the Judicial Magistrate of 1^st Class, Kasaragod. The said case has arisen from Crime No.35 of 2009 of the Badiadukka Police Station registered for offence punishable under Sections 143, 147, 323, 324, and 427 read with Section 149 of the Indian Penal Code.

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After investigation, final report was initially laid before the jurisdictional Magistrate and the case against the petitioners and two others was taken cognizance of as C.C No.865 of 2009. The petitioners were arrayed as accused Nos. 3 and 4 in the final report . The petitioners did not appear before the court below and in their absence, the trial was proceeded with against accused Nos. 1 and 2. By Annexure A2 judgment dated 6.3.2015, they were acquitted of all charges under Section 248(1) of the Code of Criminal Procedure.

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Crl. M.C. No.2538 of 2016 2

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After the acquittal of the accused Nos.1 and 2, the petitioners are before this Court seeking to quash the proceedings on the ground that the substratum of the case has been shattered.

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Heard the learned Counsel for the petitioners and the learned Public Prosecutor.

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The learned counsel appearing for the petitioners submits that the crime was registered in consequence to a political dispute and in the course of trial, the disputes were resolved. The injured witnesses were recalled and they deposed against their previous version. It is submitted based on the judgement of this Court in Moosa V Sub Inspector of Police 2006 (1) KLJ 349, Abbas T.K. V State of Kerala 2013 KHC 336 , Jalalu Rajan and Anr V State of Kerala 2013 KHC 177 and Ashraf Kancheriyil V State of Kerala 2011 (2) KHC 812 that continuance of proceedings against the petitioner would serve no purpose.

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Crl. M.C. No.2538 of 2016 3

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I have bestowed my anxious consideration on the materials on record and also the reasons that persuaded the learned Magistrate to acquit the accused Nos. 1 and 2. PWs 3 and 4 are the injured witnesses who were examined by the prosecution to prove the incident. Para 20 of the judgment reveals that PW 3 and PW 4 were recalled and they testified that the incident had occurred in the dead of night. According to them they were attacked by a group of persons and they were not able to fix the identity of the accused. The court below did not believe the evidence of any of the prosecution witnesses and had held in para 21 of the judgment that no evidence was let in by the prosecution to connect the accused who stood trial. As a matter of fact specific overact was alleged against accused Nos. 1 and 2, but the injured. witnesses did not depose in tune with their earlier version The aforesaid judgment was rendered on 6.3.2015 and the same has become final.

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Crl. M.C. No.2538 of 2016 4

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In Moosa v. Sub Inspector of Police (2006

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(1) KLT 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 wherein the very substratum of the case is lost may be an exception to this rule. The same view was followed in the precedents cited supra.

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I am of the firm view that no purpose is going to be served by directing the petitioners 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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In the result this petition is allowed and all further

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Crl. M.C. No.2538 of 2016 5

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proceedings against the petitioners in CC No. 437 of 2015 on the files of the Judicial Magistrate of 1^st Class,

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Kasaragod shall stand quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN V.