Allowed

Benny Varghese v. State of Kerala

Kerala HC21 Jul 2022Crl.MC/1790/2020

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What is this about?

The Kerala High Court allowed a criminal miscellaneous petition seeking quashing of criminal proceedings under Sections 149, 427, and 447 IPC against the petitioner. The court quashed further proceedings after finding that the acquittal of co-accused destroyed the case's substratum.

What did the court decide?

All further proceedings pursuant to the final report under Crime No.19/2007 and LP No.6/2011 against the petitioner are quashed.

Benny Varghese Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

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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 ZIYAD RAHMAN A.A. THURSDAY, THE 21^ST DAY OF JULY 2022 / 30TH ASHADHA, 1944

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CRL.MC NO. 1790 OF 2020

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AGAINST THE ORDER/JUDGMENTLP 6/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI

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PETITIONER/S:

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BENNY VARGHESE AGED 55 YEARS

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S/O. MANI, KUNNEL HOUSE NADUKANI, ARACKULAM, IDUKKI, NOW RESIDING AT KUZHIKKADU HOUSE, PATTAVAYAL P.O., PATTAVAYAL KARA, CHELAMBADI VILLAGE, GUDDALLUR TALUK, NEELAGIRI DISTRICT, TAMILNADU

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BY ADV R.LAIJU

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, KULAMAVU POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682 031

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2 ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD LIMITED, CIVIL MAINTENANCE SECTION NO.1,MOOLAMATTOM ,IDUKKI DISTRICT-685 589

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ADV. SREEJA V. -SR PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER

Dated this the 21^st day of July, 2022

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The petitioner is the 6^th accused in crime No.19/2007 of Kulamavu Police Station, Idukki District, which was registered for the offences punishable under Sections 141, 143, 149, 427 and 447 of the Indian Penal Code.

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The prosecution case is that, on 11.03.2007 at about 10 a.m., the accused persons seven in numbers, in furtherance of common object, formed into a unlawful assembly, trespassed into the property of the Kerala State Electricity Board at Kulamavu near to B.V.C. and constructed a road having 4 metres breadth and 150 metres length by using JCB. Annexure-A1 is the F.I.R. and Annexure-A3 is the final report submitted by the Police.

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Initially, the Judicial First Class Magistrate's Court-I, Idukki has taken cogniznace of Annexure-A3 as C.C. No.354/2007. In the trial followed, all the accused persons except the petitioner have appeared and contested. Annexure-A5 is the judgment passed by the learned Magistrate in the said case

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Crl.M.C.No.1790/2020

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by which all the accused persons who faced the trial were acquitted. The case against the petitioner was split up and the same was re-filed as C.C. No.25/2010 and the same is now pending as L.P. No.6/2011 on the files of the Judicial First Class Magistrate's Court-I, Idukki. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A3 as against the petitioner herein.

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Heard Sri. Laiju Ram Kallida, the learned counsel appearing for the petitioner and Smt. Sreeja V., the learned Senior Public Prosecutor for the State.

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The main contention put forward by the learned counsel for the petitioner is that consequent to the finding entered by the learned Magistrate in Annexure-A5 order, the substratum of the case is lost and hence no fruitful purpose would be served by allowing the continuation of prosecution against the petitioner. Reliance was also placed on the principles laid down by this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 552] Case.

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On the other hand, the learned Public Prosecutor opposed the aforesaid submission by highlighting that, the

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question of involvement of the petitioner is a matter to be considered in the trial and merely because of the reason that the other accused persons were acquitted, he cannot seek for quashing the proceedings against him.

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I have gone through the contents of Annexure-A1 F.I.R., Annexure A3 final report and also the observations and findings made by the learned Magistrate in Annexure-A5. The defacto complainant was examined as PW1, but he was not the eye witness to the incident. PWs2 to 4 were the occurrence witnesses examined by the prosecution and all of them have turned hostile. They have stated that, they did not witness the incident and they only have hearsay knowledge about the incident. Therefore, as the prosecution could not adduce any evidence establishing the case against any of the accused persons, the order of acquittal was passed by the learned Magistrate in Annexure-A5. On going through the observations made by the learned Magistrate it can be seen that, the aforesaid findings will have the impact of destroying the substratum of the case. Therefore, I am of the view that this is a fit case in which the principles laid down by this Court in Moosa 's case can be

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applied.

In the result, this Crl.M.C. is allowed. Annexure-A3 final report submitted in crime No.19/2007 of Kulamavu Police Station, Idukki District and all further proceedings pursuant thereto including the proceedings in L.P. No.6/2011 on the files of the Judicial First Class Magistrate's Court-I, Idukki as against the petitioner are hereby quashed.

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Sd/ZIYAD RAHMAN A.A. JUDGE

ncd

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APPENDIX OF CRL.MC 1790/2020

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PETITIONER ANNEXURES

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ANNEXURE-A1 CERTIFIED COPY OF FIRST INFORMATION REPORT IN CRIME NO.19/2007 OF THE KULAMAVU POLICE STATION ANNEXURE-A2 TRUE COPY OF THE COMPLAINT DATED 22.3.2007 ANNEXURE-A3 CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO 19/2007 OF THE KULAMAVU POLICE STATION ANNEXURE-A4 TRUE COPY OF THE STATEMENTS OF THE CHARGE WITNESSES NOS 1 TO 4 IN CRIME NO.19/2007 OF THE KULAMAVU POLICE STATION ANNEXURE-A5 TRUE COPY OF THE JUDGMENT DATED 29.1.2020 IN CC NO.354/2007 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, IDUKKI

Benny Varghese v. State of Kerala

Case brief

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Benny Varghese v. State of Kerala

Case brief

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