Allowed

Mahmood v. State of Kerala

Kerala HC21 Jun 2016Crl.MC/3343/2016

Case brief

AI extract

What is this about?

High Court allowed a criminal miscellaneous petition to quash criminal proceedings against petitioners as co-accused in an FIR. The court held that acquittal of co-accused and witness testimony negating the incident destroyed the prosecution substratum, permitting quashal under Section 482 CrPC despite prior amplifications of incidents.

What did the court decide?

Proceedings in C.P.No.209 of 2013 on files of Judicial Magistrate of 1st Class, Nadapuram arising from Crime No.18 of 2009 were quashed.

Mahmood 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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TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938

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Crl.MC.No. 3343 of 2016 ()

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--------------------------CRIME NO. 18/2009 OF VALAYAM POLICE STATION , KOZHIKODE DISTRICT

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

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PETITIONERS/ACCUSED NO. 1,3,4 AND 6:

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1. MAHMOOD,

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S/O. HASSAN, 23/09, NADUKANDIYIL HOUSE, NEAR KALLIKUNJI PALLI, CHEKYAD AMSOM, KURUVATHERI, KOZHIKODE.

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2. MUHAMMAD KOROTH,

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S/O.SHUKOOR, 33/09, KOROTH HOUSE, NEAR KALLIKUNJI PALLI, CHEKYAD AMSOM, KURUVATHERI, KOZHIKODE.

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3. AZEEZ, S/O. MOIDU HJI, 36/09, JNALIYOTTUMAL HOUSE, CHEKYAD AMSOM, KURUVATHERI, KOZHIKODE.

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4. HARIS KOROTH,

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S/O. ABDULLA, 25/09, KOROTH HOUSE, NEAR KALLIKUNJI PALLI, CHEKYAD AMSOM, KURUVATHERI, KOZHIKODE.

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BY ADVS.SRI.ABDURAHIMAN VAYALIL PEEDIKAYIL SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.SHARAN SHAHIER

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RESPONDENTS/STATE AND DEFACTO COMPLAINANT:

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

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2. BALAN, S/O. CHANDU, AGED 50, ALOLIKANDY HOUSE, CHEKKYAD P.O., KARUVANTHERY, KOZHIKODE RURAL-673 001.

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R1 BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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Crl.MC.No. 3343 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE 1 A CERTIFIED COPY OF THE FIR IN CRIME.NO. 18/2009 OF VALAYAM POLICE STATION, KOZHIKODE.

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ANNEXURE 2 A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 18/2009 OF VALAYAM POLICE STATION, KOZHIKODE.

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ANNEXURE 3 A CERTIFIED COPY OF THE JUDGMENT IN SC 43/2014 RENDERED BY THE ADDITIONAL SESSIONS JUDGE, KOZHIKODE DATED 29-06-2015.

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ANNEXURE 4 THE AFFIDAVIT DATED 29-05-2016 SWORN BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT.

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RESPONDENT(S)' ANNEXURES:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 3343 of 2016

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- - - - Dated 21^st June, 2016

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ORDER

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1.The petitioners herein are accused Nos. 1 to 4 in C.P.No.209 of 2013 on the files of the Judicial Magistrate of 1^st Class, Nadapuram involving offences punishable under Sections 143, 147, 148 and 427 read with Section 149 of the IPC and sections 3 and 5 of the Explosives Act, 1884.

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2.The petitioners along with others were indicted and sent for trial before the Court of Sessions, Kozhikode in S.C.No.43 of 2014. The accused Nos.2, 5 and 7 were the only persons who were available for trial and as per Annexure 3 judgment dated 29.6.2015, they were found not guilty and were acquitted under Section 232 of the Code of Criminal Procedure. The case against the petitioners were split up and re-filed as above.

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3.Heard the submissions of the learned counsel appearing for the petitioners and the 2^nd respondent.

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Crl.M.C. No.3343 of 2016 -2-

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4.It is submitted that during the pendency of the proceedings, the rival parties decided to give a quietus to all their subsisting disputes. After much deliberations amongst themselves and at the interventions of persons who are respected by both parties, they have decided to bury the past and turn a new leaf. There is no acrimony between the parties at present and they are living in peace and harmony. To bring on record the settlement, the 2^nd respondent has also sworn to an affidavit which speaks in unmistakable terms his decision to erase the bitter incidents of the past and to start afresh.

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5.The learned Public Prosecutor, on instructions, submits that the petitioners are not persons with criminal antecedents.

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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. Annexure 3 judgment records the acquittal of the co-accused and the learned Magistrate has observed in paragraph 8 of the judgment that the occurrence witnesses who were examined as PW's

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Crl.M.C. No.3343 of 2016 -3-

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2 and 3 had deposed that they had no occasion to witness the incident. It was based on these conclusive findings that the court below had concluded that it was a case of “no evidence” to link the accused with the crime. 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 considered opinion that this is one of those exceptional cases where prayer for invocation of the extraordinary inherent jurisdiction can be justifiably invoked to serve the ends of justice as the case falls within the matrix of guidelines laid down by the Apex Court in Gian Singh v. State of Punjab ( 2012 (4) KLT 108) and Narinder Singh and others v. State of Punjab and anr. reported in (2014) 6 SCC 466) and

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Crl.M.C. No.3343 of 2016 -4-

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other cases.

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In the result, this petition is allowed and all further proceedings against the petitioners in C.P.No.209 of 2013 on the files of the Judicial Magistrate of 1^st Class, Nadapuram arisen from Crime No.18 of 2009 of the Valayam Police Station stand quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/-21.6.16

Mahmood v. State of Kerala

Case brief

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Mahmood v. State of Kerala

Case brief

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