Acquittal of co-accused can invalidate prosecution against other accused if it destroys the case's foundation.

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. Petitioners are accused Nos.3 and 5 in Crime No.971/2017 of Ottapalam Police Station. The petitioners along with 3 others were charge-sheeted alleging offences punishable under Sections 143, 147, 341 and 323 read with Section 149 of Indian Penal Code.

3. Heard counsel for the petitioners and the Public Prosecutor.

4. The petitioners were not able to appear before the lower court and their case was split up and the trial against the other accused were proceeded and as per Annexure-3 judgment, the trial court acquitted the other accused. The counsel for the petitioners submitted that in the light of Annexure-3 judgment, the continuation of the proceedings against the petitioners will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioners have 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 inAshraf 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 judgment 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:

“7. Point nos. 1 to 4: These points are considered together for the sake of brevity and convenience. PWI is the de-facto complainant who had given Ext. P1 FIS. According to him, he did not know the persons who wrongfully restrained him and assaulted him. He further deposed that he has no complaints against the accused.

8. PW2 and PW3 also supported the version of PW1. They categorically deposed that they did not know the persons who attacked them

9. PW1 to PW3 turned hostile to the prosecution. The examination of other witnesses was given up by learned Assistant Public Prosecutor, since the material witnesses did not support the prosecution case. Even though PW1 to PW3 were put questions which would be asked in cross examination, nothing was brought out in support of the prosecution case. It appears from the testimony of PW1 to PW3 that the matter has been settled between the parties. There are no materials before this court to conclude that the accused had committed the above offences. Therefore, this court is inclined to acquit the accused person. Hence point nos. 1 to 4 are found against the prosecution.

10. Point no. 5: In view of my finding on point nos. 1 to 4, accused nos. 1, 2 and 4 are found not guilty of the offences punishable under sections 143, 147, 341 and 323 :/w 149 IPC. They are acquitted under sec. 255(1) Cr.PC of the above offences. Their bail bonds stand cancelled and they are set at liberty. Case against A3 and A5 is split up and refiled as CC

574 / 2022.”

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.

Therefore, this Criminal Miscellaneous Case is allowed.

All further proceedings against the petitioners in C.C.No.574/2022 on the file of the Judicial First Class Magistrate Court-I, Otta