Allowed

Abdul Mubarak v. the Inspectoe of Police

Kerala HC4 Sept 2023Crl.MC/2198/2023

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous application to quash pending proceedings against the petitioner under Section 482 Cr.P.C. holding that the acquittal of co-accused demonstrated that the entire substratum of the prosecution case was dislodged.

What did the court decide?

This Criminal Miscellaneous Case was allowed and all further proceedings in L.P.C No.33/2019 stood quashed.

Abdul Mubarak Vs the Inspectoe of Police — Criminal Trial and Appeal | 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 GOPINATH P.

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MONDAY, THE 4TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945

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CRL.MC NO. 2198 OF 2023

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LPC NO.33/2019 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD, IN CRIME NO.75/2013 OF KASARAGOD POLICE STATION, KASARAGOD

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PETITIONER/1ST ACCUSED:

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ABDUL MUBARAK

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AGED 29 YEARS, S/O HAMEED,
CHERANKAI, KASABA VILLAGE,KASARAGODE, PIN – 671 121.

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BY ADV ANN SUSAN GEORGE

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RESPONDENTS/COMPLAINANT AND STATE:

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1 THE INSPECTOR OF POLICE KASARAGODE POLICE, KASARAGODE, PIN – 671 121.

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2 THE STATE OF KERAALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682 031.

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BY ADV. SRI. NOUSHAD K A (SR PP)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC NO.2198 OF 2023 2

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ORDER

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The petitioner was the 7^th accused in C.C No.66/2017 on the files of the Chief Judicial Magistrate Court, Kasaragod, alleging commission of offences under Sections 143, 147, 148, 341, 323, 324, 326, 354, 427, 153 A r/w Section 149 of the Indian Penal Code.

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The gist of the prosecution is that, on 27.01.2013, at about 5.30 p.m., while CWs 4 to 8 were playing cricket, a bus named ‘Kalmas’ bearing registration No.KL-11/U-1539, reached near the ground and the cricket ball they were using had hit on that bus. It is alleged that the accused including the petitioner herein, who belonged to the Muslim community, had formed themselves into an unlawful assembly, and in prosecution of their common object, committed rioting armed with deadly weapons, and had attacked CWs 4 to 8, who belonged to the Hindu community. Since the petitioner was absconding, the trial proceeded against accused Nos. 1 to 6, 8, 9 and 11. The case against the petitioner was split up and refiled as C.C. No.222/2019 on the file of the same court. The

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Crl.MC NO.2198 OF 2023 3

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said case is now pending as L.P.C. No.33/2019 before that court. The petitioner has filed this petition under Section 482 of Cr.P.C. on the ground that the trial against accused accused Nos. 1 to 6,8, 9 and 11 had been concluded and those accused had been acquitted on the finding that the prosecution witnesses had not supported the prosecution case and on the finding that the evidence in the case therefore did not support the allegations against the accused.

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It is the case of the learned counsel for the petitioner that on the principles laid down in Moosa v. Sub Inspector of Police, 2006 KHC 184, and also on the principles laid down by the Honorable Supreme Court in Sahadevan and another v. State of Tamil Nadu; (2012) 6 SCC 403 , since the entire substratum of the prosecution case had been lost, there was no point in continuing the prosecution against the petitioner. The learned counsel also relied on Annexure -III judgment of this Court in Crl.M.C.No.7089/2022, where the proceedings against one of the other accused in the same case (who was also absconding) had been quashed by this Court.

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Heard the learned Public Prosecutor also.

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While considering the case of the 12^th accused, this

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Crl.MC NO.2198 OF 2023 4

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Court after noting the prosecution case and the allegations against the accused held as follows:-

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“ 6. Annexure A3 would show that to prove the prosecution case, de facto complainant as well as another injured were examined as PW1 and PW2. But they did not support the prosecution case. Hence, the prosecution gave up the remaining witnesses. PW1 deposed that none of the accused were present at the alleged place of the occurrence and that she stated the name of the accused to the police on the basis of hearsay. She has also stated that the entire dispute has been settled and she has no complaint. PW2 also did not support the prosecution version. A reading of Annexure A3 judgment would show that the substratum of the prosecution case is dislodged.

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The Supreme Court of India in Sahadevan & another v. State of Tamil Nadu [2012 (6) SCC 403] has held that, if the entire case has been found to be unreliable and prosecution as a whole has not been able to prove its case beyond reasonable doubt, then benefit should accrue to all the accused persons and not merely to the accused, who faced trial. The Full Bench of this Court in Moosa v. Sub Inspector of Police [2006 (1) KLT 552] has held that in a case where the very substratum of the case is lost by the acquittal of the co-accused, the power under Section 482 of the Cr.P.C. could be invoked”.

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I see no reason to take a different view in the case of the petitioner (1^st accused in L.P.C No.33/2019 / 7^th accused in C.C. No.66/2017).

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Crl.MC NO.2198 OF 2023 5

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Accordingly, this Crl.M.C. is allowed and all further proceedings in L.P.C No.33/2019 on the files of the Chief Judicial Magistrate Court, Kasaragod will stand quashed.

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Sd/- GOPINATH P. JUDGE

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ats

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Crl.MC NO.2198 OF 2023 6

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APPENDIX OF CRL.MC 2198/2023

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PETITIONER’S ANNEXURES
Annexure 1CERTIFIED COPY OF THE FINAL REPORT IN
CC.66/2017 OF CHIEF JUDICIALMAGISTRATE
COURT, KSARAGODE

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Annexure.IICERTIFIEDCOPY OF THE JUDGEMENTIN
CC.66/2017 OF CHIEF JUDICIALMAGISTRATE
COURT, KSARAGODE,DATED.27.72022

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Annexure.IIITRUE COPY OF THE ORDER IN CRLMC.7089/2022
DATED.20.10.2022

Abdul Mubarak v. the Inspectoe of Police

Case brief

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Abdul Mubarak v. the Inspectoe of Police

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