The acquittal of co-accused can be a ground for quashing proceedings against the remaining accused if it shatters the substratum of the prosecution case.

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. Petitioner is one of the accused in Crime No.400/2016 of Kumbala Police Station. Petitioner was minor at the time of the alleged incident. The case was registered alleging offences punishable under Section 143, 147, 148, 341, 323, 324 r/w 149 IPC.

3. The final report was filed before the jurisdictional court. Since the petitioner was a minor, the case was referred to the Juvenile Justice Board. But no final report is filed before the Juvenile Justice Board. As far as the case against the other accused is concerned, the trial court acquitted them, as evident by Annexure III judgment. In the light of Annexure III judgment, the proceedings against the petitioner is an abuse of process of court, is the submission.

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. The Public Prosecutor also submitted that the statement of the defacto complainant is recorded and the defacto complainant is not interested to proceed against the petitioner.

5. 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 will be an abuse of process of court. It will be beneficial to extract the relevant portion of Annexure III judgment by which the co-accused is acquitted:

“8. Point No.1:- PW I to PW6 are the injured. They deposed that on 14.07.2016 a mob assaulted and voluntarily caused injury to them. However, in the witness box all the witnesses failed to identify the accused standing in the dock and turned hostile to the prosecution. As the evidence adduced by the prosecution does not disclose the involvement of the accused in the alleged offence. I have no hesitation to hold that the prosecution has failed to prove the case.”

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 petitioner in Crime No.400/2016 of Kumbala Police Station are quashed.