The judgment reinforces the principle that acquittal of co-accused can nullify the foundation of a prosecution case, warranting case dismissal.

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 the 4th accused in Crime No.53 of

2015 of Chevayoor Police Station, which is now pending as C.C. No.497 of 2021 on the file of Judicial First Class Magistrate-I, Kozhikode. The above case is charge- sheeted against the petitioner and 9 others alleging offences punishable under sections 143, 147 and 353 read with Section 149 of the Indian Penal Code and Section 117 (e) of the Kerala Police Act .

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

4. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court as per Annexure -AIII judgment 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/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:

“Even if the prosecution succeeded to prove the alleged incident it does not come under the purview of Sec. 353 of IPC of course it may come under sections 183 or 188 of . offence punishable u/s Sec. 353 of is an aggregated form of offence punishable u/s 188 of . Prosecution cannot substitute a penal section 353 of for an offence punishable u/s 188 of . Unlike sec. 353 of sec. 185 as well as 188 are non-cognizable offences. Sec. 195 of Cr.PC barred the taking of cognizance of offences punishable u/s 172 to 188 of without the written complaint of the officer aggrieved. Admittedly, PW5 the Ameen deputed by Munsiff Court did not file any complaint before the court Police alleging offence of contempt of his lawful authority. Hence this court cannot take cognizance of offence punishable u/s 183 or 188 of as a minor offence of sec. 353 of in view of bar u/s 195 of Cr.P.C.

13. Sec. 117(a) of the Kerala Police Act says:

"(a) abets any member of the police force not to do his duties or to commit violation of discipline........... shall, on conviction, be punishable with imprisonment for a term which may extend to three years or with fine or with both".

On going through the evidence of the witnesses it would reveal that there is no evidence before the court to prove that any of accused abetted the police person on duty to violate discipline or to abet not to do his duty. Hence this court can safely conclude that absolutely there is no evidence to substantiate charge u/s 117(a) of KP Act 100.

14. PW1, PW2 and PW4, the Police officers deposed that the accused No.1 to 10 and others constituted unlawful assembly and in prosecution of the common object of the unlawful assembly A1 to A10 and others confined PW5, the Ameen deputed by the Court in order to deter him from discharging his duty. But PW5 deposed that he came to the place of occurrence along with the police personnel and he was not restrained or confined by anybody from the site. His case is that the accused and other did not obey his request to go away