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Ismayil v. State of Kerala

Kerala HC2 Aug 2023Crl.MC/566/2023

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COURT OF KERALA AT ERNAKULAM PRESENT THE…

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Ismayil Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV
WEDNESDAY,THE2NDDAYOFAUGUST2023/11THSRAVANA,1945
CRL.MCNO.566OF2023
CC945/2018OFCHIEFJUDICIALMAGISTRATE,THALASSERY

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PETITIONERS/ACCUSED NOS.6 & 7:

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1ISMAYIL
AGED34YEARS,S/OIBRAHIM,
KUTTEREENTAVIDA(H),KOLAVALLUR,THOOVAKKUNNU,
KANNURDISTRICT,PIN-670693
2MUHAMMEDSHAFI
AGED28YEARS
S/O.ABDULLA,MURIKKULLATHIL(H),KOLAVALLUR,
THOOVAKKUNNU,KANNURDISTRICT.,PIN-670693
BYADVS.
V.JOHNSEBASTIANRALPH
VISHNUCHANDRAN
RALPHRETIJOHN
SHIFNAMUHAMMEDSHUKKUR
APPUBABU
GIRIDHARKRISHNAKUMAR
VISHNUMAYAM.B.
GEETHUT.A.
APOORVARAMKUMAR

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RESPONDENT/COMPLAINANT:

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STATEOFKERALA
REPRESENTEDBYPUBLICPROSECUTOR,
HIGHCOURTOFKERALA,ERNAKULAM,PIN-682031

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SRI.MCASHI,PUBLICPROSECUTOR

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THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON
02.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING:

Crl.M.C 566 of 2023

ORDER

The instant petition is filed under Section 482 of the Code of Criminal Procedure (“the Code”) for the sake of brevity.

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The petitioners herein are the accused Nos.6 and 7 in CC No.945 of 2018 on the file of the Chief Judicial Magistrate, Thalassery. The aforesaid case has arisen from Crime No.29/2013 of the Kolavalloor Police Station. The offence alleged are under Sections 143, 147, 148, 447, 294(b) r/w Section 149 of the IPC.

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Prosecution allegation is that on 11.01.2013 at about 8 am, the accused formed themselves into an unlawful assembly and in prosecution of their common object, trespassed into the courtyard of the house of the informant and hurled abuses.

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In the final report laid before the jurisdictional court, seven persons were arrayed as the accused, and the petitioners were accused Nos. 6 and 7. The petitioners failed to appear before the trial court, and the case against them were split up and refiled. The case against accused Nos. 1 to 5 was proceeded with, and by judgment dated 17.9.2018, they were acquitted of all charges.

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It is on the basis of the acquittal of the co-accused that this

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Crl.M.C 566 of 2023

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petition is filed seeking to quash the proceedings on the ground that the substratum of the case against the petitioners has been shattered.

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Sri. John Sebastian Ralph, the learned counsel appearing for the petitioners, has relied on the judgments rendered by this Court in Moosa v. Sub Inspector of Police [2006 (1) KLJ 349], Abbas T.K. v. State of Kerala [2013 KHC 336], Jalalu Rajan and Anr v. State of Kerala [2013 KHC 177] and Ashraf Kancheriyil v. State of Kerala [2011 (2) KHC 812] and it was urged that the continuance of proceedings against the petitioners herein would serve no purpose.

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I have heard the learned Public Prosecutor.

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I have gone through the Annexure-2 judgment of acquittal rendered by the Sessions Judge. After meticulous evaluation of the evidence, the learned Magistrate has concluded that the prosecution has miserably failed to let in any evidence reliable enough to connect the accused with the crime. The accused were accordingly acquitted under Section 248(1) of the Code. As held by a three-Judge Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), though the reasoning of the judgment contained or appreciation of evidence in the case of a co-accused therein are not grounds to attract any relief under Section 482 of the Code of Criminal Procedure, a case where the substratum of the case is lost, is an exception to the above rule.

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Crl.M.C 566 of 2023

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I am of the firm view that no purpose is going to be served by directing the petitioners herein to undergo the ordeal of a trial at this stage. It can only be a futile exercise and will only serve to waste precious judicial time, which can be used for more productive work. Furthermore, no evidence of worth could be adduced by the prosecution during the previous trial. In that view of the matter, I am of the considered opinion that this Court will be well justified in invoking the powers under Section 482 of the Code and in quashing the proceedings.

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Resultantly, this petition is allowed. Annexure-1 final report in Crime No. 29 of 2013 of the Kolavallur Police Station and all further proceedings pursuant thereto against the petitioners now pending as C.C.No.945/2018 on the file of the Chief Judicial Magistrate Court, Thalassery are quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN V, JUDGE

IAP

Crl.M.C 566 of 2023

APPENDIX OF CRL.MC 566/2023

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PETITIONERS’ANNEXURES:

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Annexure1CERTIFIEDCOPYOFTHEFINALREPORTINCRIME
NO.29/2013OFKOLAVALLOORPOLICESTATION,
THALASSERY,KANNURDISTRICT
Annexure2CERTIFIEDCOPYOFTHEORDEROFTHECOURTOF
CHIEFJUDICIALMAGISTRATE,THALASSERY,
KANNURDISTRICTINCC1086/2013ARISINGOUT
OFCRIMENO.29/2013

Ismayil v. State of Kerala

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Ismayil v. State of Kerala

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