Allowed

K.P.Ismayil v. State of Kerala

Kerala HC29 Jul 2016Crl.MC/2998/2016

Case brief

AI extract

What is this about?

Court allowed petition to quash criminal proceedings under Section 482 CrPC. Held that where co-accused were acquitted on merits due to lack of evidence, continuing trial against remaining accused was a futile exercise and violated the principle that proceedings must be quashed when the substratum of the case is lost.

What did the court decide?

All further proceedings against the petitioner in L.P.C. No.1 of 1996 shall stand quashed.

K.P.Ismayil Vs State of Kerala — Criminal Trial and Appeal | 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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FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938

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Crl.MC.No. 2998 of 2016

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JUDGMENT DATED 31-01-1996 IN SC 130/1993 OF SPECIAL COURT FOR TRIAL OF OFFENCE U/A 33/1989, THALASSERY CRIME NO. 22/1993 OF PAYYANNUR POLICE STATION, KANNUR

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PETITIONER(S)/10TH ACCUSED:

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K.P.ISMAYIL, S/O AHAMMED KUNHI, AGED 42 YEARS, KIZHAKKEPURAYIL HOUSE, KAVVAYI P.O., VADIPPURAM, KANNUR DISTRICT.

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BY ADVS.SRI.C.P.PEETHAMBARAN

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SMT.MINI.V.A.

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RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031

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2. CHANDRASEKHARAN, S/O MADHAVAN, KALLEL VEETIL, KAVVAYIL, PAYYANNUR, KANNUR DISTRICT-670 307.

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R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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msv/

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Crl.MC.No. 2998 of 2016

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.22/1993 OF PAYYANNUR POLICE STATION. ANNEXURE A2: CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO.22/1993 OF PAYYANNUR POLICE STATION. ANNEXURE A3: CERTIFIED COPY OF THE ORDER DATED 31.1.1996 IN S.C.NO.130/1993 ON THE FILES OF THE COURT OF SPECIAL JUDGE FOR THE TRIAL OF OFFENCES UNDER ACT 33 OF 1989 AT THALASSERY. RESPONDENT(S)' ANNEXURE:

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

RAJA VIJAYARAGHAVAN.V, J

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----------------------------------------

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Crl.M.C. No.2998 of 2016

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-----------------------------------------

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Dated this the 29^th day of July, 2016

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O R D E R

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1.The petitioner is the accused in L.P.C. No.1 of 1996 on the file of the Special Judge for the trial of offence under Act 33 of 1989 at Thalassery. The said case has arisen from

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Crime No.22 of 1993 of Payyannur Police Station registered inter alia for offence punishable under Sections 143, 147, 148, 341, 323, 324 read with Section 149 of the Indian Penal Code.

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2.Final report was laid arraying 10 persons as the accused. The was case taken cognizance of and numbered as S.C.No.130 of 1993. The accused Nos. 2 to 4 and 8 to 10 did not appear before the trial court and the case against them was split up and re-filed. The trial was proceeded as against accused No.1 and 5 to 7 and as per Annexure-A3

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Crl.M.C.2998/2016

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judgment dated 31.1.1996 they were found not guilty and were acquitted of all charges. It is submitted at the Bar that the 2^nd accused had later appeared before the court and as per judgment dated 25.10.1996 in S.C.No.162 of 1996 he was also acquitted.

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3.The petitioner has now preferred the instant petition under Section 482 of the Code to quash the proceedings against him on the ground that the substratum of the case has been shattered in view of the acquittal of the coaccused. It is submitted by the learned counsel referring to Annexure-A3 judgment that the de facto complainant had filed a petition seeking composition of the offences. On merits the learned Special Judge had held that there was nothing on record to show that the offence under Act 33 of 1989 was attracted.

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4.I have heard the learned Public Prosecutor as well.

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5.I have perused Annexure-A3 judgment of the Special Judge by which the accused who faced trial were

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Crl.M.C.2998/2016

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acquitted. It is discernible that the de facto complainant and the accused had filed a joint petition to compound the offence under Section 341, 323 and 324 of the IPC. After considering their statements the composition was allowed. In so far as the offence under Act 33 of 1989 is concerned, the learned Special Judge had held, after meticulous evaluation of the evidence that there was absolutely nothing on record to conclude that the complainant was humiliated in public view. It was on the basis of the above finding that the accused were acquitted.

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6.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

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Crl.M.C.2998/2016

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wherein the very substratum of the case is lost may be an exception to this rule.

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7.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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In the result, the petition is allowed and all further proceedings against the petitioner in L.P.C. No.1 of 1996 on the file of the Special Judge for the Trial of Offence under Act 33 of 1989 at Thalassery, shall stand quashed.

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Sd/RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

K.P.Ismayil v. State of Kerala

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K.P.Ismayil v. State of Kerala

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