Continuing prosecution following the acquittal of a co-accused can amount to an abuse of process of court and may warrant quashing of charges.

O R D E R

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.7137/2007, which is now pending as C.C. No.376/2022 on the files of the Additional Chief Judicial Magistrate, Ernakulam. The above case is chargesheeted against the petitioner and others alleging offences punishable under Sections 341,324 and 353 r/w 34 of Indian Penal Code. The other accused is already acquitted as per Annexure A1.

3. It is submitted that in the light of Annexure A1 the continuation of prosecution against the petitioner 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:

“12. The evidence of PWI shows that when the public pelted stone towards the bus, it resulted in breaking of the glass and glass piece hitting on the middle finger on the left hand of PW1 resulting in injury to him. PWs2 and 3 also stated that PW1 sustained injury in the middle finger on his right hand. PW1 was taken to General Hospital, Ernakulam for treatment immediately after the occurrence. There is no medical evidence to corroborate the claim of PWs1 to 3 that PW1 sustained hurt in the middle finger on his right hand. In the absence of Wound Certificate it is not possible to find that PW1 had sustained the injury as claimed by him.

13. PW1 has stated that both the accused had pelted stones.

PW1 has also stated that the public had pelted stones and two persons who pelted stone were taken into custody by the police on the date of occurrence. PW1 does not say as to how he identified both the accused from among the public numbering about 50. According to PW1, he cannot say the stone pelted by which accused had resulted in causing injury to him. PW3 identified that 2nd accused had pelted stone on the glass of the bus. In cross examination PW3 stated that two persons had taken stones and only one of them pelted stone. So, there is no unanimity in the version of PWs1 to 3 regarding the accused who had pelted stone towards the bus. While PWs1 and 2 state that both the accused had pelted stones PW3 states that only the 2nd accused had pelted stone. The evidence of PW1 shows that there were about 50 persons at the time of occurrence and according to the first version of PW1, the public had pelted stones.”

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