The acquittal of co-accused can be a ground for quashing proceedings against the remaining accused 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. The petitioner is the 3rd accused in Crime No.61/2004 of Chandera Police Station, Kasaragod, which is now pending as C.C.No.1433/2021 on the file of the Judicial First Class Magistrate Court-I, Hosdurg. It is submitted that the co-accused were already acquitted as per Annexure-A3 judgment and 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 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 the judgment by which the co-accused is acquitted:

'9. The offence alleged against Al and 2 is u/s 379 IPC and against A3 is u/s 411 IPC. P.W.1 while doing Law and Order duty on 25.5.04 arrested A3 in this case with a motor bike No. KL-11J-6315 and registered crime No 371/04 against A3. He seized the motor bike as per Ext.P1 mahazar. On questioning A3, A3 confessed that he received the motor bike from A1 and 2 and on further investigation it was revealed that motor bike was involved in crime 61/04 of Chandera Police Station. He transferred the FIR to Chandera police station for further investigation.

10. The connecting link of the offence against A1 and A2 is the confession statement given by A3 which is marked as Ext.P4 in which it was stated that A1 and A2 brought the motor bike and given to him in the month of February 2004. the relevant portion is as follows: '

സുജ(cid:3)ോയിയും ബിജ(cid:3)ോയിയും

വടജ(cid:12) തൃ(cid:12)രിപ്പൂരിൽ നിന്നും എടുത്തു് ക(cid:24)ോണ്ട് വന്ന ഒരു ജ(cid:29)ോജ(cid:30)ോർ സൈ!(cid:12)ിൾ ഈ ക(cid:24)ോല്ലം ക%ബ്രുവരി (cid:29)ോ!ം

എനി(cid:12)്

തന്നു.'

In Ext.P4 no ingredients of theft is seen incorporated or the confession made by A3 does not reveal the offence of theft. Further, the material witnesses CW1 to 5 did not turn up before this Court for evidence inspite of coercive steps taken against them. The investigating agency failed to procure the presence also. The theft of motor bike is not at all proved by the evidence of PWs1 to 6. PW1 to 6 are the official witnesses alone. CW1 who was using the motor bike and CW2 the agreement owner and CW3 the purchaser of motor bike from CW1 and sold it to CW2 are not examined in this case. Hence the alleged theft of the motor bike involved in this case is not proved by the prosecution. Non examination of material witnesses are vital to the prosecution case. Therefore according to me prosecution has not establishing the guilt of the accused beyond all reasonable doubt in this case. Ext.P4 is not sufficiently proved. A3, the alleged accused who purchased the motor bike from A1 and 3 did not appear before this court also. PW1 recorded his statement and based on that A1 and 2 are arrayed as accus