Allowed

Faisal K.Pallikandy v. State of Kerala

Kerala HC18 Jul 2024Crl.MC/2163/2016

Case brief

AI extract

What is this about?

The High Court held that an accused cannot challenge a Magistrate's order under Section 321 Cr.P.C. withdrawing prosecution when the State does not challenge it. However, regarding a quashing prayer for the final report, the Court found insufficient evidence to connect the petitioner to the theft of soil. Consequently, the proceedings against the petitioner alone were held to be an abuse of proces

What did the court decide?

Further proceedings against the petitioner alone in CC No. 547/2014 arising from Crime No. 318/2012 are quashed.

Faisal K.Pallikandy Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2024)

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CRL.MC NO. 2163 OF 2016

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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 THURSDAY, THE 18^TH DAY OF JULY 2024 / 27TH ASHADHA, 1946

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CRL.MC NO. 2163 OF 2016

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CRIME NO.318/2015 OF Panniankara Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT DATED IN CC NO.547 OF 2014 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF MARADU CASES, KOZHIKODE

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PETITIONER/S:

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FAISAL K.PALLIKANDY AGED 42 YEARS AGED 42,S/O.BEERAN KOYA,BINEESHA MANZIL,PALLIKANDY,KOZHIKODE.

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BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA SMT.UMMUL FIDA

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RESPONDENT/S:

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

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2 THE SUB INSPECTOR OF POLICE PANNIYANKARA POLICE STATION,KOZHIKODE - 673 005.

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3 T.K.JASIR S/O.ABOOBACKER,VALIYATHODIPARAMBA,MUKKANIKAL,ARTS COLLEGE,KOZHIKODE - 673 005.

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CRL.MC NO. 2163 OF 2016

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4 FAISAL S/O.BEERANKOYA,BINEESH MANZIL,PALLIKANDY,KOZHIKODE - 673 005.

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OTHER PRESENT:

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SMT. NIMA JACOB PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 2163 OF 2016

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P.V.KUNHIKRISHNAN, J

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Crl.M.C. No. 2163 of 2016

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Dated this the 18^th day of July, 2024

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O R D E R

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This Criminal Miscellaneous case is filed with the

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following prayers :

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“i) Call for the records leading to Annexure-A1 to A4 and set aside Annexure A4 order in Crl.M.P. No. 547/2014 in CC No. 547/2014 passed by the Special Judicial First Class Magistrate Court (Marad Cases), Kozhikode and allow the AnnexurepA3 application by allowing this petition.

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ii) To quash Annexure A1 charge sheet leading to CC No. 547/2014 on the files of the Special Judicial First Class Magistrate Court (Marad Cases) , Kozhikode iii) Such other reliefs in favour of the petitioner as this Hon'ble Court may deem fit to grant.” [sic]

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Annexure-A4 is an order passed by the Special Judicial First Class Magistrate Court (Marad Cases), Kozhikode dismissing an application filed by the Asst. Public Prosecutor

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CRL.MC NO. 2163 OF 2016 4

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under Sec. 321 Cr.P.C. to withdraw the prosecution case. The learned Magistrate dismissed that petition as per Annexure-A4. The petitioner, who is the accused in the above case challenged Annexure-A4 order. Prima facie, I am of the considered opinion that an accused in a criminal case has no right to challenge an order passed by the Magistrate court in a petition filed under Sec. 321 Cr.P.C by the Asst. Public Prosecutor, especially when there is no challenge to the same from the side of the State.

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But, there is a prayer in this Criminal Miscellaneous case to quash the proceedings in Annexure-A1 final report. Therefore, this Court has to consider the same in detail.

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The petitioner herein is the 3^rd accused in CC No. 547/2014 on the file of the Special Judicial First Class Magistrate Court (Marad Cases), Kozhikode. The above case is taken on file based on the final report filed by the Panniyankara Police in Crime No. 318/2012. The 3^rd and 4^th respondents herein are the 1^st and 2^nd accused in the above crime.

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The prosecution case is that the accused Nos. 1 to 3

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CRL.MC NO. 2163 OF 2016 5

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in furtherance of their common intention to commit theft removed twenty loads of soil from the revenue land in Kallayi Amsom of Kozhikode Corporation, Ward No. 36 by using JCB bearing No. KL 13 L 6751, Lorry No. KL 10 L 4288 and KL 10 AJ 7646. According to the prosecution, it was found that the accused removed soil from the revenue land from 4.30 pm on 01.09.2012 and transported the same to the West Hill, Chungam and kept in a property rented from one Mr. Abdulla Koya and hence committed the offences under Sec. 379 r/w Sec. 34 IPC. Annexure-A1 is the final report.

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According to the petitioner, even if the entire allegations in Annexure-A1 are accepted, no offence under Sec.379 IPC is made out because no materials produced by the prosecution to prove that the petitioner herein removed the soil to attract the offence under Sec. 379 IPC.

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When this Criminal Miscellaneous case came up for consideration, this Court directed the Public Prosecutor to verify whether any of the witness stated that the petitioner

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CRL.MC NO. 2163 OF 2016 6

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removed soil from the revenue land as stated in the final report. The Public Prosecutor after verifying the case diary submitted that the official witness did not see the removal of soil by the petitioner. But, the Public Prosecutor submitted that there is evidence to show that soil is removed from the property. The Public Prosecutor takes me through Sec. 161 Cr.P.C. statement of Charge Witness No.7 and submitted that he is an eye witness to the removal of soil. This Court perused the statement of that witness also. He did not stated that the petitioner removed the soil from the disputed property. If that is the case, I am of the considered opinion that the offence under Sec. 379 IPC is not attracted as far as the petitioner is concerned. I make it clear that I have not considered the allegation against the other accused.

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The upshot of the above discussion is that the continuation of the prosecution against the petitioner is an abuse of process of court.

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Therefore, this Criminal Miscellaneous case is

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CRL.MC NO. 2163 OF 2016

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allowed.

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All further proceedings against the petitioner alone in CC No. 547/2014 on the file of the Special Judicial First Class Magistrate Court (Marad Cases), Kozhikode arising from Crime No. 318/2012 of Panniyankara Police Station are quashed.

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Sd/P.V.KUNHIKRISHNAN JUDGE

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SKS

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CRL.MC NO. 2163 OF 2016

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APPENDIX OF CRL.MC 2163/2016

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PETITIONER ANNEXURES

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ANNEXURE-A1:	CERTIFIED NO.318 OF STATION, K	COPY 2012 OZHIK	OF FINAL REPORT IN CRIME BEFORE PANNIYANKARA POLICE ODE
ANNEXURE-A2:	TRUE COPY	OF	LETTER NO:65455/L3/14/HOME
	ISSUED BY 20.10.2014	GOV	ERNMENT OF KERALA, DATED
ANNEXURE-A3:	TRUE COPY A.P.P. SEE	OF C KING	MP NO.3225 OF 14 FILED BY TO WITHDRAW THE PROSECUTION
ANNEXURE-A4:	CERTIFIED 2014 IN	COPY CC 5	OF ORDER IN CMP 3225 OF 47 OF 2014 PASSED BY THE
	SPECIAL J (MARAD CAS	UDICI ES),	AL FIRST CLASS MAGISTRATE KOZHIKODE
ANNEXURE-A5:	TRUE COP SUBMITTED NO.318 OF	Y OF BY P 2015	MEMORANDUM OF EVIDENCE ANNIYANKARA POLICE IN CRIME
ANNEXURE-A6:	TRUE COPY PANNIYANKA	OF ST RA PO	ATEMENT RENDERED BY CW-1 IN LICE CRIME 318 OF 2015.

Faisal K.Pallikandy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Faisal K.Pallikandy v. State of Kerala

Case brief

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