Dismissed

Abdul Khader.K.K@Batlam Umbu, v. State of Kerala

Kerala HC20 Jun 2019Crl.MC/419/2019

Case brief

AI extract

What is this about?

In Crl.MC.No.419 of 2019, the Kerala High Court dismissed a petition seeking quashing of criminal proceedings where co-accused were acquitted via withdrawal of prosecution. The court held the acquittal order was perverse and illegal, exercising power under Section 401 Cr.P.C. to direct registration of a revision petition.

What did the court decide?

The petition is dismissed; the court directs registration of a revision petition against the order dated 25.07.2014.

Abdul Khader.K.K@Batlam Umbu, Vs State of Kerala — Quashing and FIR | Kerala HC (2019)

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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 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941

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Crl.MC.No.419 of 2019

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AGAINST THE ORDER/JUDGMENT IN LPC 69/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, HOSDRUG

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CRIME NO.358/2010 OF BEKAL POLICE STATION, KASARGOD

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PETITIONERS / ACCUSED:

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1 ABDUL KHADER.K.K @ BATLAM UMBU, AGED 46 YEARS, S/O KUNHAMU, THALANGARA, THALANGARA VILLAGE, KASARGOD-671315.

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2 P.A. SALAHUDHEEN, AGED 28 YEARS, S/O ABOOBACKER, PALLIKAAL HOUSE, MOONUM MILE, THALANGARA, KASARAGOD-671315.

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BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM

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RESPONDENT/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR SRI. RAMESH CHAND

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.419 of 2019

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..2..

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ORDER

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This petition is filed seeking to quash the entire criminal proceedings pending against the petitioners before the learned Judicial Magistrate of the First Class II, Hosdurg, as L.P.No. 69 of 2012.

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The facts are thus:

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Crime No.358 of 2010 of the Bekal Police Station was registered on 13.05.2010 under Sections 143, 147, 148, 294(b), 324, 332, 308 and 427 r/w Section 149 of the IPC. The prosecution allegation is that in the course of a Football Match at the Meleparamba Ground, there occurred a fight between the members of opposing teams. CWs. 1 to 6 were police officers, who were placed there on duty. They intervened and the accused are alleged to have attacked the police personnel causing injuries.

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Investigation was completed and final report was laid before the learned Magistrate. The case was committed to the Court of Session and it was numbered as S.C. No.28 of 2012 on the file of the Additional Sessions Court – I, Kasaragod.

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The petitioners herein are the accused Nos. 1 and 3 in the aforesaid case. There were not available for trial. While the

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..3..

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Crl.MC.No.419 of 2019

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proceedings were pending before the Sessions Court, Annexure-A3 order was passed by the State authorizing withdrawal from prosecution. Consequently, Annexure-A4 petition was filed by the Additional Government Pleader seeking sanction to withdraw the case. The said application was allowed by the Additional Sessions Judge. The order dated 25.07.2014 is extracted below for easy reference.

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“Rs.25,000/- being the loss sustained to club paid. So, issue notice to concerned officials of club to receive the amount. In the light of allowing of Crl.M.P.2818/14, all accused are acquitted u/s 321(b) of Cr.P.C. Destroy all the properties being value less.”

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The accused, who faced prosecution, were acquitted of all charges by the learned Additional Sessions Judge. It is on the basis of the above order of acquittal that the petitioners have approached this Court seeking to quash the proceedings.

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Having gone through the order passed by the learned Additional Sessions Judge, I have no doubt in my mind that the same is perverse and illegal.

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In Rahul Agarwal v. Rakesh Jain [(2005) 2 SCC 377],

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the Apex Court while dealing with the application under Section 321 of the Cr.P.C had occasion to hold that the withdrawal of prosecution can

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Crl.MC.No.419 of 2019

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be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. The discretion under Section 321 of the Code is to be carefully exercised by the court having due regard

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to all the relevant facts and shall not be exercised to stifle the prosecution, which is being done at the instance of the aggrieved parties or the State for redressing their grievance. It was emphatically held that the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.

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In Bairam Muralidhar v. State of A.P [(2014) 10 SCC 380], it has been laid down that it is obligatory on the part of the court to satisfy itself from the material that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the court to weigh the material. However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle

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the course of law or cause manifest injustice. A court while giving consent under Section 321 of the Code is required to exercise its judicial discretion and judicial discretion, as settled in law, is not to be

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Crl.MC.No.419 of 2019

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exercised in a mechanical manner. The court cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public and justice. The court is also obliged to see whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That is what maintains the law and order situation in the society. The very same view was reiterated in Abdul Wahab K.

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v. State of Kerala and others [AIR 2018 SC 4265].

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Insofar as the prayer for quashment of the proceedings is concerned, this Court in Moosa v. Sub Inspector of Police (2006 (1) KLJ 349) had occasion to hold that 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. It may however, be a case where the very substratum of the case is lost, which may be an exception to this rule. However, as held by the Apex Court, it has to be held that even when a co-accused is acquitted in the very same trial,

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Crl.MC.No.419 of 2019

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the other accused can be convicted if there are good reasons to do so. In other words, the acquittal of some of the accused by itself is not a reason to bar the trial in the case of the other accused.

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In the facts and circumstances, I find no reason to quash the proceedings pending against the petitioners. This petition will stand dismissed.

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Annexure A4 order passed by the learned Sessions Judge is clearly perverse and illegal and if the same is allowed to stand it would result in travesty of justice. This is a fit case where revision petition has to be registered to correct the perverse judgment.

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In exercise of the powers under Section 401 of the Cr.P.C., I direct the registry to initiate necessary steps to register a revision petition against the order dated 25.07.2014 on the file of the Additional Sessions Judge-I, Kasaragod.

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RAJA VIJAYARAGHAVAN V., JUDGE

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Bka/20.06.2019

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Crl.MC.No.419 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1:	A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 358 OF 2010 OF BEKAL POLICE STATION.
ANNEXURE A2:	A TRUE COPY ORDER NO.63417/L2/11/HOME DATED 16.07.2012 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A3:	A CERTIFIED COPY OF THE ORDER DATED 25.07.2014 IN S.C NO.28 OF 2012 OF THE ADDITIONAL SESSIONS COURT-I, KASARAGOD.
ANNEXURE A4:	A TRUE COPY OF THE PETITION CRL.M.P.NO.2818 OF 2014 FILED BY THE PROSECUTION BEFORE THE ADDITIONAL SESSIONS COURT-I, KASARAGOD ALONG WITH THE DOCKET ORDER

Abdul Khader.K.K@Batlam Umbu, v. State of Kerala

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Abdul Khader.K.K@Batlam Umbu, v. State of Kerala

Case brief

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