Allowed

Nithin v. State of Kerala

Kerala HC4 Jul 2016Crl.MC/3025/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the petition under Section 482 CrPC and quashed the criminal proceedings against the petitioner. Relying on the acquittal of co-accused and the observation that the substratum of the case was shattered, the Court held that further trial was a futile exercise.

What did the court decide?

All further proceedings against the petitioner in S.C. No. 70 of 2014 before the Assistant Sessions Court, Payyannur were quashed.

Nithin 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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MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938

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Crl.MC.No. 3025 of 2016

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SC 70/2014 of SUB COURT, PAYYANNUR CP 3/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR CRIME NO. 394/2006 OF PAYYANNUR POLICE STATION , KANNUR

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PETITIONER(S)/ACCUSED NO.2:

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NITHIN, AGED 29 YEARS, S/O. KARUNAKARAN, NETOOR HOUSE, EDATT, KUNHIMANGALAM, AMSOM, KANNUR DISTRICT.

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BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 3025 of 2016

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APPENDIX

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PETITIONERS' ANNEXURES

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ANNEXURE I: COPY OF THE FINAL REPORT IN CRIME NO.394/06 OF PAYYANNUR POLICE STATION

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ANNEXURE II: COPY OF THE JUDGMENT OF ASST.SESSONS COURT, PAYYANNUR IN SC.385/2007

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RESPONDENTS' ANNEXURES

NIL.

/ TRUE COPY /

P.S. TO JUDGE

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 3025 of 2016

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- - - - Dated 4^th July, 2016

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ORDER

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1.The petitioner herein is the sole accused in S.C.No.70 of 2014 on the files of the Assistant Sessions Court, Payyannur. The said case has arisen from Crime No.394 of 2006 of Payyannur Police Station registered inter alia for offences punishable under Sections 143, 147, 148, 447, 324, 333 and 506(ii) read with Section 149 of the IPC.

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2.After investigation, final report was laid before the jurisdictional Magistrate and the case was committed to the Court of Sessions and taken cognizance of and was numbered as S.C.No.385 of 2007. Out of the 7 accused who were arrayed in the final report, petitioner and 4^th accused did not appear before court and face trial. The trial was proceeded with as against others and as per Annexure II judgment dated 4.10.2013, the accused 1, 3

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Crl.M.C. No.3025 of 2016 -2-

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and 5 to 7 were acquitted of all charges under Section 235

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(1) of the Code of Criminal Procedure (hereinafter referred

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to as the “Code”).

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3.The case against the petitioner was split up and re-filed as S.C.No.70 of 2014.

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4.This petition is filed contending that the substratum of the case has been shattered in view of the acquittal of the coaccused as per Annexure II judgment.

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5.I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

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6.I have given my anxious considerations to the submissions made across the bar and I have also gone through the materials on record. It is evident from Annexure II judgment of the court below that accused Nos. 1, 3 and 5 to 7 were found not guilty and were acquitted. It is apparent that the overt act was primarily against accused No.1. The learned Sessions Judge had after meticulously appreciating the prosecution evidence

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Crl.M.C. No.3025 of 2016 -3-

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had observed that the injured witness did not even identify accused No.1 against whom specific overt act was alleged. It was further held that the prosecution had failed to prove its case beyond the shadow of reasonable doubt and had accquitted the accused. These observations, would definitely affect the very substratum of the prosecution case. 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 coaccused 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.

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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

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Crl.M.C. No.3025 of 2016 -4-

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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. All further proceedings as against the petitioner in S.C.No.70 of 2014

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on the files of the Assistant Sessions Court, Payyannur shall stand quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN.V.,

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JUDGE

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kp/-5.7.16

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Crl.M.C. No.3025 of 2016

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-5-

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“ S.C. No. 70 of 2014 ” occurring in the first sentence of paragraph 1, 2^nd line of paragraph 3 and 2^nd line of the operative portion is corrected and substituted as “ S.C.No.191 of 2011 ” as per order dated 31/10/2016 in Crl.M.A.No.10040/2016 in Crl.M.C.No.3025/2016.

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Sd/Registrar (Judicial)

Nithin v. State of Kerala

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Nithin v. State of Kerala

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