Prosecution can be quashed if the substratum of the case is undermined by the acquittal of co-accused, invoking the abuse of process principle.

ORDER

This Criminal Miscellaneous Case is filed under Section

482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity).

2. The petitioner is one of the accused in Crime No.950/2014 of Ponnani Police Station, which is now pending as C.C.No.703/2018 on the files of the Judicial First Class Magistrate Court-I, Ponnani. The above case is charge sheeted against the petitioner and others alleging offences punishable under Sections 143, 147, 148, 323, 324, 506(i)

r/w Section 149 IPC.

3. The prosecution case is that the accused formed themselves into unlawful assembly and assaulted the victim. It is submitted that the petitioner was not able to appear before the trial court and hence, his case was split up and the case against the other accused were tried and acquitted as per Annexure A3 judgment. It is submitted that, in the light of the same, the continuation of the prosecution against the petitioner alone is an abuse of process of court.

4. 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 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.

5. This Court inMoosa 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 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:-

“Post No.1: The defacto complainant in this examined as PW1. He has deposed that an incident that had taken place on 09-11-2014 at about 6.00 pm near Manjam Bhaghawathi Temple, Anappadi. In the incident a group of person attacked him and caused him hurt using a bamboo stick. He had given Ext.P1 statement to the police. PW2 who is the alleged eye witness to the incident has deposed in tune with PW1 with respect to the incident. The eye witness including the injured failed to identify the accused persons as the assailants. Since there is no incriminating evidence, the point is found against the prosecution.

Point No.2: In the result, all accused except No.3 are found not guilty of the offences punishable U/s. 143, 147,148, 323, 324, 506(i) r/w 149 IPC and the accused are acquitted U/s. 248(1) Cr.PC. However the bail bond executed by the accused and the sureties shall be in force for a period of six months in view of section 437A Cr.P.C. All accused except No.3 are set at liberty. Case against accused No.3 split up and refiled as CC 703/2018.”

6. 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 against the petitioner alone in Crime No.950/2014 of Ponnani Police Station, which is now pending as C.C.No.703/2018 on the files of the Judicial First Class Magistrate Court-I, Ponnani ar