The High Court of Kerala allowed a petition under Section 482 CrPC to quash criminal proceedings against the petitioner, an accused acquitted by co-accused, holding that the substratum of the case was destroyed making further trial futile.
Proceedings against the petitioner in C.C.No.990 of 2012 are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938
Crl.MC.No. 2639 of 2015
CC 990/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE
CRIME NO. 252/2003 OF KASABA POLICE STATION, KOZHIKODE
PETITIONER(S)/ACCUSED:
LEE RAFEL, S/O.RAFEL, AGED 31 YEARS, PALLESSERI HOUSE, OLLUR AMSOM DESOM, KOZHIKODE.
BY ADV. SRI.K.PRAVEEN KUMAR
RESPONDENT(S)/COMPLAINANT/STATE:
1. SUB INSPECTOR OF POLICE, KASABA POLICE STATION, KOZHIKODE - 673 001.
2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
msv/
Crl.MC.No. 2639 of 2015 () ---------------------------
APPENDIX
PETITIONER(S)' ANNEXURES:
ANNX.1 - COPY OF THE JUDGMENT DATED 30.8.2008 IN C.C.NO.661 OF 2005 OF JFCM III KOZHIKODE.
ANNX.2 - COPY OF THE CHARGE IN C.C.NO.990/2012 IN CRIME NO.252/2003 OF KASABA POLICE STATION.
RESPONDENT(S)' ANNEXURES:
------------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
RAJA VIJAYARAGHAVAN.V, J
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Crl.M.C. No.2639 of 2015
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Dated this the 7th day of July, 2016
O R D E R
1.The petitioner herein is the 4th accused in C.C.No.990 of 2012 on the file of the Judicial Magistrate of First Class Court-III, Kozhikode. The aforesaid case has arisen from Crime No.252 of 2003 of Kasaba Police Station registered for the offence punishable under Sections 3(1), 4(1) and 7(1) of the Immoral Traffic (Prevention) Act, 1956. Seven persons including the petitioner herein were charge sheeted by the Station Officer, Kasaba Police Station.
2.The crux of the allegation is that on 29.7.2003 at 2.30 p.m., accused Nos.2 to 7 were found indulging in prostitution for economic gain in Dream Herbal Beauty Parlor, which was owned and managed by the 1st
Crl.M.C.2639/2015
2
accused.
he did not appear before the court below and face the trial. As per Annexure-1 judgment dated 30.8.2008, accused Nos.1, 2, 3, 5 and 7 were found not guilty of the offence alleged and were acquitted under section
248(1) of the Code of Criminal Procedure.
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6.I have bestowed my anxious considerations to the
submissions made across the bar and I have also gone through the materials on record. I have perused the materials on record and also Annexure-1 judgment of the learned Magistrate. It appears from Annexure-1 judgment that 7 persons were proceeded against for having committed offences under the Immoral Traffic (Prevention) Act. The learned Magistrate has meticulously evaluated the evidence and have concluded that the offences under sections 3, 4 and 7 of the Act will not be attracted in the facts and circumstances. The learned Magistrate also relied on the judgment of this Court in Radhakrishnan v. State of Kerala (2008 (2) KLT 521) to come to the said conclusion. The judgment in respect of the coaccused was rendered on 30.8.2008 and the same has become final.
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7.As held by three Judge Bench of this Court in Moosa
v. Sub Inspector of Police (2006 (1) KLT 552), though the reasoning of the judgment contained or appreciation of evidence in the case of a co-accused therein are not grounds to attract any relief under Section 482 of the Code, a case where the substratum of the case is lost is an exception to the above rule.
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 and also in view of the conclusive finding of the trial Magistrate that the ingredients of the offence was lacking in the instant case.
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In the result, this petition is allowed. The proceedings as against the petitioner in C.C.No.990 of 2012 on the file of the Judicial Magistrate of First Class Court-III, Kozhikode, are quashed.
Sd/RAJA VIJAYARAGHAVAN.V. JUDGE
vps
1 issue framed by the court
Whether the proceedings against the petitioner under the Immoral Traffic (Prevention) Act should be quashed under Section 482 CrPC given the acquittal of co-accused to such an extent that the substrat
Colour shows how this judgement treated each authority
Moosa v. Sub Inspector of PoliceApplied¶4
Moosa v. Sub Inspector of Police (2006 (1) KLT 552)
Radhakrishnan v. State of KeralaRelied on¶6
Radhakrishnan v. State of Kerala (2008 (2) KLT 521)
2 provisions across 2 enactments
Lee Rafel
State, Rep. by Public Prosecutor
Raja Vijayaraghavan V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
