Prakash vs State Of Kerala

P.V.Kunhikrishnan, J

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

Petitioner is one of the accused in Crime No.671 of 2005 of Karunagappally Police Station, Kollam. The case against the petitioner is pending as CC No.329 of 2021 on the file of the Judicial First Class Magistrate Court-I, Karunagappally. This case is filed to quash the proceedings because the co-accused were already acquitted.

This Court directed the petitioner to surrender before the lower court and regularise the proceedings. Now it is submitted that the petitioner surrendered and regularised the proceedings. As per Annexure A2 judgment accused Nos.3 and 4 were acquitted and as per Annexure A3 judgment, accused No.5 is aquitted. It is submitted that in the light of the above judgment, the prosecution against the petitioner is an abuse of process of law.

Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner/s 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.

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  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 co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioner/s will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted:

“10. On going through the testimony of PW1 to 3, I find that the prosecution failed to prove the identity of the accused. Though Ext.P1 was marked through PW1 the involvement of A1 & A5 (A4 & A23 in the original case) and the overt act of accused have not been proved. No evidence has forth-come to the effect that the accused have committed any of the offences in furtherance of their common object. In this context, no culpability can be imposed on the accused. Therefore, these points are answered against prosecution.”

From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co-accused. 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.

Hence this Criminal Miscellaneous Case is allowed. All further proceedings as against the petitioner in CC No.329 of 2021 on the file of the Judicial First Class Magistrate Court-I, Karunagappally arising from   Crime No.671 of 2005 of Karunagappally Police Station, Kollam, are quashed.