Allowed

Shaijan Thottappilly v. State of Kerala

Kerala HC25 Sept 2023Crl.MC/2062/2018

Case brief

AI extract

What is this about?

In a criminal miscellaneous case under Section 482 CrPC, the High Court of Kerala quashed criminal proceedings against the petitioner. Relying on its own precedents, the Court held that since the co-accused's case was already quashed shattering the prosecution's substratum, continuing the trial would be an abuse of process.

What did the court decide?

All further proceedings against the petitioner in CC. No.172/2014 on the file of the Judicial First Class Magistrate Court, Kalady, are quashed.

Shaijan Thottappilly Vs State of Kerala — Writ and Judicial Review | Kerala HC (2023)

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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 P.V.KUNHIKRISHNAN MONDAY, THE 25^TH DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945

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CRL.MC NO. 2062 OF 2018

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 CC 172/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,

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KALADY

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PETITIONER/S:

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SHAIJAN THOTTAPPILLY
AGED 47 YEARS, S/O.VARKEY,
THOTTAPPILLY HOUSE,
MANICKAMANGALAM P.O.,
ERNAKULAM DISTRICT.

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BY ADVS.
SRI.SREEPRAKASH K.NAIR
WILSON URMESE
MANU HORMIS WILSON(K/965/2018)

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RESPONDENT/S:

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

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2RAJAN JOSE
AGED 44 YEARS, S/O.JOSE,
KOLENCHERRY HOUSE,
MANICKAMANGALAM P.O., - 683 574,
ERNAKULAM DISTRICT.

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OTHER PRESENT:

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SMT. N.R SANGEETHA RAJ PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:

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Crl.M.C.2062/2018

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P.V.KUNHIKRISHNAN, J.

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Crl.M.C. No.2062 of 2018

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Dated this the 25^th day of September, 2023

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O R D E R

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This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity).

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This Criminal Miscellaneous Case is filed to quash the proceedings in CC. No.172/2014 on the file of Judicial First Class Magistrate Court, Kalady, in the light of the fact that the case against the first accused is already quashed as per Annexure A2 order.

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Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused case is already quashed by this court and the continuation of the trial against the petitioner will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code.

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This Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336) and in Ashraf

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Crl.M.C.2062/2018

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Kancheriyil v. State of Kerala (2011(2) KHC 812) considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgement of acquittal of the coaccused that could be taken into account while considering the request to quash the proceedings. After going through the order of this Court, I am of the considered opinion that the continuation of the prosecution against the petitioner will be an abuse of process of court. It will be beneficial to extract the relevant portion of the order passed by this Courot as evident by Annexure A2:

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“4. I have perused Annexure-I complaint. Two witnesses have been cited to prove the complainant's case. Both of them are Hindus. In response to a question put to him by the court, the learned counsel admitted that these two witnesses were not present in the church during the mass. It means that these two witnesses cannot prove the allegation made against the petitioner in the complaint. No other witness has been cited to prove the allegation against the petitioner.

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Explanation 4 to Section 499 IPC runs as follows: “No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be

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Crl.M.C.2062/2018

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believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful”.

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If the petitioner is not able to prove that his reputation was lowered in the estimation of others, the petitioner cannot be found guilty. When the second respondent does not even propose to adduce any evidence to prove that his reputation was lowered in the estimation of others, the trial is a futile exercise. The proceedings is liable to be quashed so far as the petitioner is concerned.

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In the result, this Crl.M.C is allowed. The proceedings in C.C.No.172 of 2014 on the file of the Judicial Magistrate of the First Class, Kalady are quashed so far as the petitioner is concerned.”

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From the above, it is clear that the substratum of the prosecution case is shattered by the order passed by this court. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed.

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Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in CC. No.172/2014 on the file of Judicial First Class Magistrate Court, Kalady, are quashed.

Sd/-

P.V.KUNHIKRISHNAN,

JUDGE

sou.

Crl.M.C.2062/2018

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APPENDIX OF CRL.MC 2062/2018

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PETITIONER ANNEXURES

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ANNEXURE-A1:CERTIFIED COPY OF THE COMPLAINT IN
C.C.NO.172/2014 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, KALADY.
ANNEXURE-A2:TRUE COPY OF THE ORDER DATED 8/8/2017 IN
CRL.M.C.NO.1849/2015 OF THIS HON'BLE
COURT.

Shaijan Thottappilly v. State of Kerala

Case brief

What is this about?

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Shaijan Thottappilly v. State of Kerala

Case brief

What is this about?

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