Allowed

Yunus v. the State of Kerala

Kerala HC15 Dec 2016Crl.MC/5854/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous petition filed under Section 482 CrPC to quash proceedings against two accused persons as co-accused in a split-up case. Quashing was granted because the previous acquittal of co-accused demonstrated a lack of evidence, rendering further trial futile. The judgment held that despite general principles, a case where the substratum is lost is

What did the court decide?

Annexure-A1 final report and all proceedings pursuant thereto against the petitioners were quashed.

Yunus Vs the 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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THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938

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Crl.MC.No. 5854 of 2016 ()

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AGAINST CC 267/2013 of J.F.C.M-II,HOSDURG CRIME NO. 404/2005 OF BEKAL POLICE STATION, KASARGOD

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PETITIONERS/ACCUSED 40 & 41 (NOW 16 & 17 IN THE SPLIT UP CASE):

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1. YUNUS,AGED 30 YEARS, S/O.ABDUL RAHIMAN,RESIDING AT FAIZAL MANZIL, CHEMBARIKA,KALANAD,KASARAGOD DISTRICT.

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2. BASHEER.A.K,AGED 30 YEARS, S/O.ABDULLA,RESIDING AT P.M.MANZIL,KEEZHUR, KALANAD,KASARAGOD DISTRICT.

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BY ADVS.SRI.T.MADHU

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SMT.C.R.SARADAMANI

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RESPONDENT:

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THE STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, BEKAL POLICE STATION,KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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BY PUBLIC PROSECUTOR SRI.T.R.RENJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5854 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES

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----------------------ANNEXURE A1 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.404/2005 OF BEKAL POLICE STATION ANNEXUFE A2 THE TRUE COPY OF THE JUDGMENT DATED 25.2.2013 IN C.C.986/2008 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II,HOSDURG.

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RESPONDENT(S)' ANNEXURES

NIL

/TRUE COPY/

VPS PS TO JUDGE

RAJA VIJAYARAGHAVAN.V, J

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Crl.M.C. No.5854 of 2016

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Dated this the 15^th day of December, 2016

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O R D E R

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1.The instant petition is filed under Section 482 of the Code of Criminal Procedure.

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2.The petitioners herein are the accused Nos.16 and 17 in C.C. No.267 of 2013 on the file of the Judicial Magistrate of First Class-II, Hosdurg. This is a split up case from C.C. No.986 of 2008 on the files of the said court, which has originated from Crime No.404 of 2005 of the Bekal Police Station. In the final report as many as 60 persons were arrayed as accused, petitioners being the accused Nos.40 and 41 in the array. They had absconded along with certain others. The case was proceeded against accused Nos.1 to 5, 7 to 11, 13 to 15, 21, 25, 28, 29, 31 to 36, 44 to 47, 49 to 54 and 56 to 58. By Annexure-A2 judgment

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Crl.M.C.5854/2016

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dated 25.2.2013, the aforesaid accused were acquitted holding that the prosecution had failed to prove its case beyond the shadow of doubt. The case against the rest of the accused were refiled and is pending as aforesaid.

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3.It is on the basis of the acquittal of the co-accused that this petition is filed seeking to quash the proceedings on the ground that the substratum of the case as against the petitioners has been shattered.

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4.Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.

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5.The learned Counsel appearing for the petitioners, relying on the decisions of this Court in Moosa V Sub Inspector of Polic e [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] would submit that

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Crl.M.C.5854/2016

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the continuance of proceedings against the petitioners would serve no purpose.

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6.I have gone through Annexure-A1 final report as well as as Annexure-A2 judgment rendered by the learned Magistrate. Before the trial court, as may as 21 witnesses were examined to prove the case of the prosecution. However, it appears from Annexure-A2 that none of the witnesses who were cited, supported the case of the prosecution. They deposed before the court that though the incident had taken place they were unable to identify the accused who were involved in the incident. The prosecution relied on the evidence of Pws 1 to 4 and 18 who were the police personnel posted in the vicinity. However, they deposed that they were unable to identify the persons who had committed the offensive acts. It is relevant to note that only 11 persons were arrested from the spot and the learned Magistrate, after meticulous

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Crl.M.C.5854/2016

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analysis of the evidence, came to the conclusion that identification of the accused by the police officials out of 400 persons who had assembled at the spot is unbelievable. The above judgment was rendered on 25.2.2013 and the same has become final. As held by a three Judge Bench of this Court in Moosa (supra) 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 of Criminal Procedure, 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 petitioners to face the trial at this stage. It can only be a futile exercise and will only serve to waste precious judicial time which can be used for more productive work. The prospects of conviction is extremely remote as no evidence of worth could be adduced by the

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Crl.M.C.5854/2016

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prosecution during the previous trial. This Court will be justified in quashing the proceedings under Section 482 of the Code.

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In the result, this petition is allowed. Annexure-AI final report and all proceedings pursuant thereto against the petitioners, who are the accused Nos. 16 and 27 in C.C. No.267 of 2013 on the file of the Judicial Magistrate of First Class-II, Hosdurg are quashed.

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Sd/RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

Yunus v. the State of Kerala

Case brief

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Yunus v. the State of Kerala

Case brief

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