Quashing of criminal proceedings is warranted when the acquittal of co-accused significantly undermines the prosecution's case.

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.

57/2008 of Pothencode Police Station, which is now pending as CC No. 1163/2008 on the file of the Judicial First Class Magistrate Court-I, Attingal. It is submitted that the co-accused were already acquitted as per Annexure-A3 judgment. In the light of the same, the continuation of the prosecution against the petitioner is an abuse of process of court.

3. 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. 4. 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:

7. Point Nos. 1 to 3:- These points are considered together for convenience. In order to prove its case, prosecution has cited 9 witnesses. 5 among them were examined as Pws 1 to 5. PW1 denied the knowledge of incident. He said he had not seen the incident that alleged by th prosecution. He saw there was a fight between some persons and police. But this accused persons were not involved. PW2 also denied the knowledge of incident. According to him, he never saw these accused persons and have no acquaintance with them, Pws 3 and 5 are the other occurrence witnesses also denied the knowledge of incident. They said they did not give any statement to the police with regard to the incident because they had not seen the same. PW4 the Investigating Officer was examined, he was the Dy.S.P. Attingal on 11.3.2008, he conducted the part of investigation in this case. Accordingly investigation was conducted by the Sub Inspector of Police, Pothencode Police Station on the relevant day. Subsequently this investigation was took over by PW4, as per the instruction of rural S.P. he inquired about the incident to this witness and deleted 9th accused from this case and filed Ext. P1 report. Subsequently, he verified the entier documents and filed final report against these accused persons. In this incident to Pws 1 to 3. But Pws 1 to 3 denied the knowledge of incident. The Investigating Officer who conducted the remaining part of investigation was not examined as he was not turn up. Though issued repeated coercive steps against him, it was in vain. Other official witnesses who were present on the alleged time of incident also not turned up for giving evidence, so many times, warrant was issued and directed the prosecution to produce the witnesses but that was in vain. Hence the evidence in this case is not sufficient to prove the case and the prosecution has miserably failed to prove its case against this accused persons.

Hence, these points are decided against the prosecution.”

5. From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delive