Abdul Kareem vs State of Kerala

Thomas P. Joseph, J.—Petitioner is 2nd accused in Crime No. 573 of 2007 of Nadakkavu Police Station and C.C No. 876 of 2010 of the Court of learned Judicial First Class Magistrate-IV, Kozhikode for offence punishable u/s 292 of Indian Penal Code.

The case is that on 28.10.2004 at about 4.15 pm, Sub Inspector of Police, Anti Goonda Squad on getting information searched shop of the 1st accused, seized obscene videos and arrested Petitioner and accused No. 3, who were (allegedly) present in the shop. The 1st accused was impleaded in the case as owner of the shop in question. Himself and the 3rd accused faced trial in C.C No. 2 of 2006. Learned Magistrate while convicting the 1st accused, acquitted the 3rd accused for want of evidence to implicate him. Petitioner seeks the benefit of acquittal of the 3rd accused and the finding made by the learned Magistrate concerning alleged involvement of the 3rd accused. Learned Counsel submits that in the search list prepared by the Detecting Officer, there is only a mention of the (alleged) presenceof Petitioner and the 3rd accused in the shop at the relevant time and has invited my attention to the finding of the learned Magistrate in Annexure-I judgment acquitting the 3rd accused.

I have heard the learned Public Prosecutor also. I have gone through Annexure-I judgment. In paragraph (15), learned Magistrate has found:

Accused Nos. 2 and 3 were taken into custody by PW.1 merely for the reason that they were present in the shop. Apart from the presence of those two accused, prosecution could not bring in any evidence to show that they were the employees of the first accused and they joined with the first accused in committing the offence. Hence I am of the view that the third accused now facing trial is entitled for the benefit of doubt.

The learned Public prosecutor was not able to point out any material to show that Petitioner is in any way connected with the alleged incident. Admittedly, Petitioner and 3rd accused were arrested on the same ground, their (alleged) presence in the shop. Regarding the 3rd accused, learned Magistrate has already found that there is no sufficient evidence to implicate him with the alleged incident and that his mere presence in the shop is not sufficient. Position of Petitioner also is the same. If that be so, the finding entered by learned Magistrate in Annexure-I judgment so far as involvement of the 3rd accused has destroyed the substratum of the prosecution case against Petitioner/2nd accused who is place in similar position as the 3rd accused. Hence I am inclined to accept the contention of Petitioner.

Resultantly, this Criminal Miscellaneous Case is allowed. Proceeding against Petitioner in C.C No. 876 of 2010 of the Court of learned Judicial First Class Magistrate-IV, Kozhikode (2nd accused in Crime No. 573 of 2007 of Nadakkavu Police Station) are quashed.