The acquittal of co-accused can be a ground for quashing proceedings against the remaining accused under Section 482 of the Code of Criminal Procedure, 1973, if the substratum of the prosecution case is shattered.

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.140/2015 of Kondotty Police Station which is now pending as S.C.No.1205/2017 on the file of the District and Sessions Court, Manjeri.

3. It is submitted that the co-accused were already acquitted and the continuation of the proceedings 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 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 B judgment by which the co-accused were acquitted:

“53. In conclusion, based on the above circumstances it can only be held that though PW3 to PW9 have given direct evidence in the matter, their evidence is not credible. Primarily, this is for the reason that all of them are from the EK Sunni sect and they are on enimical terms with the accused who are from the AP Sunni sect. Any independent witness unconnected to either groups is not examined by the prosecution. The injuries on the accused are also not explained. There is no consistency regarding who all had attacked the witnesses, when the final report is compared with the evidence of witnesses. All weapons allegedly used, including the knife have not been recovered. There are vital omissions in the evidence of the witnesses. Though it is proved that an incident did happen on the date mentioned, it cannot be held with any amount of precision that the accused had intended to form an unlawful assembly and had attacked the witnesses to commit offences. In Dharam Singh and Others v. State of Punjab, 1993 KHC 788, it was observed that the enmity between accused and witnesses, contradictions and omissions in the depositions of the witnesses and doubts regarding the presence of accused at the place of incident are sufficient to put a reasonable doubt on the prosecution case. In that view of the matter it is held that the prosecution has failed to establish that the accused had committed any of the offences. Points are answered accordingly.”

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.140/2015 of Kondotty Police Station which is now pending as S.C.No.1205/2017 on the file of the District and Sessions Court, Manjeri are quashed.