Allowed

Ashraf v. the State of Kerala

Kerala HC2 Sept 2022Crl.MC/2425/2021

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous case and quashed further proceedings against the petitioner, who was an accused in a separate trial for unlawful assembly. Quashing was granted based on the finding of the lower court that the prosecution failed to identify the accused and no damage occurred.

What did the court decide?

Crl.M.C allowed; Annexure 1 and further proceedings in C.C No. 724/2018 pending before Munsiff Magistrate Court Kasaragode against the petitioner are quashed.

Ashraf Vs the 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. FRIDAY, THE 2^ND DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.MC NO. 2425 OF 2021

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AGAINST THE ORDER/JUDGMENTCC 724/2018 OF PRINCIPAL MUNSIFF, KASARAGOD

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PETITIONER/ACCUSED:

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ASHRAF AGED 33 YEARS S/O HASSAINAR, KADAPPURAM HOUSE, SHIRIYA VILLAGE, KASARGOD DISTRICT, PIN-671321. BY ADVS. ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.PRAJIT RATNAKARAN SHRI. RAJ CAROLIN V.

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RESPONDENT/STATE AND DEFACTO COMPLAINANT:

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

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2 THE STATION HOUSE OFICER KUMBLA POLICE STATION, KASARGOD-671321.

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ADV. SEENA C -PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No. 2425 of 2021

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ORDER

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The petitioner is the 4^th accused in Crime No.140/2009 of Kumbla Police Station, which was registered for the offences punishable under Sections 143, 147, 148, 283, 224, 353, 332 read with Section 149 of IPC.

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The aforesaid crime was registered on the allegation that, on 25.04.2009, at 05.15 p.m., the accused Nos 1 to 5 along with 100 unidentifiable persons formed into an unlawful assembly at National Highway in front of Sri Sankara Narayana Temple at Shiriya, and obstructed the traffic through the National Highway. When CW1, the Sub Inspector of Police, Kumbla and other police officers tried to disperse them, they disobeyed the lawful direction of the police and pelted stones at the police officers, thereby causing hurt to them. Annexure 1 is the final report submitted by the police. The Chief Judicial Magistrate Court, Kasaragod, has taken cognizance of the said offences as C.C No. 556/2009 and in the trial followed, all the accused persons except the petitioner participated. Annexure 2 is the judgment passed in the said case

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Crl.M.C No. 2425 of 2021

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by which all accused persons who faced the trial were found not guilty and acquitted. The case against the petitioner has been split up, and it now stands refiled as C.C No.724/2018 which is now pending before Munsiff Magistrate Court, Kasaragod. This Crl.M.C is filed for quashing all further proceedings pursuant to Annexure 1 as against the petitioner herein.

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Heard Sri. Abdul Raoof P, the learned counsel appearing for the petitioner and Smt. Seena C, learned counsel appearing for the State.

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The specific contention put forward by the learned counsel for the petitioner is that, consequent to the order of acquittal passed by the learned Chief Judicial Magistrate as per Annexure 2, the substratum of the prosecution case itself is lost and hence further prosecution of the petitioner is a futile exercise and unwarranted. Reliance was also placed upon the principles laid down by this Court in Moosa v. Sub Inspector of Police [2006(1) KLT 552].

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On the other hand, the learned Public Prosecutor would oppose the aforesaid contention by highlighting that, merely

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Crl.M.C No. 2425 of 2021

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because the other accused persons were acquitted, the petitioner herein is not entitled to an order to quash the proceedings against him.

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I have gone through the contents of Annexure 1 final report and observations/findings made by the learned Magistrate in Annexure 2 judgment. It is discernible therefrom that the learned Magistrate has entered a concrete finding to the effect that no incident as alleged in the prosecution has occurred on the premises. The prosecution was mainly relying upon the evidence of PW1 and PW2, who were Sub Inspector of Police, and the Policeman who were present at the place of occurrence. Even though, they stated about the incident and also claimed to have identified some of the accused persons, the learned Magistrate arrived at a categorical finding that the identification of the accused by the said witnesses cannot be relied upon. It was also found that the prosecution could not adduce any evidence indicating any damage to any vehicle or injuries to any persons, including the police officers. Ultimately, it was observed by the learned Magistrate that what actually happened was that there was

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Crl.M.C No. 2425 of 2021

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an assembly of people in the place of occurrence in protest against the death of a person in a road accident, and during the said process, the public way was obstructed. However, there was no individual identification which could be relied on for conviction. Thus, the learned Magistrate acquitted all the accused persons who faced the trial on the specific finding that the prosecution miserably failed in establishing the allegations.

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Considering the nature of the above finding, which was entered by the learned Magistrate after appreciating the evidence adduced by the prosecution, I am of the view that same will have the effect on destroying the substratum of the case. Therefore, even if a further trial is conducted in respect of the allegations against the petitioner, no fruitful purpose would be served. Therefore, this is a fit case in which the principles laid down by this Court in Moosa 's Case can be applied, and the proceedings be quashed by invoking the powers of this Court under Section 482 of Cr.P.C.

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In the result, this Crl.M.C is allowed and Annexure 1 final report submitted in Crime No. 140/2019 of Kumbla Police Station,

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Crl.M.C No. 2425 of 2021

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and further proceedings pursuant to it, including the proceedings in C.C No. 724/2018, pending before the Munsiff Magistrate Court,

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Kasaragode as against the petitioner are hereby quashed.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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rpk

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Crl.M.C No. 2425 of 2021

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APPENDIX OF CRL.MC 2425/2021

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PETITIONER ANNEXURES

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ANNEXURE-1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.140/2009 OF KUMBLA POLICE STATION KANNUR DISTRICT. ANNEXURE-2 CERTIFIED COPY OF THE JUDGMENT DATED 30.11.2015 IN CC 556/2009 OF CJM KASARGOD.

Ashraf v. the State of Kerala

Case brief

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What did the court decide?

Ashraf v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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