The court established that acquittal of co-accused can justify quashing proceedings if it shatters the core of the prosecution's 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 the first accused in Crime No.304/2014 of Vadakkekad Police Station which is now pending as S.C.No.168/2023 on the file of the Assistant Sessions Court, Chavakkad.

3. It is submitted that the co-accused were already acquitted as per Annexure A1 judgment.

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 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 will be an abuse of process of court. It will be beneficial to extract the relevant portion of Annexure A1 judgment by which the co-accused were acquitted:

“18. Even if the evidence of the prosecution witnesses is believed as a whole, at the most it can be held that the accused assembled on the western extreme corner of a play ground with some objects which can be usually seen in a play groundThat alone is not sufficient to prove the ingredients of offence of preparation to commit dacoity. It is significant that in the case in hand no witnesses have spoken that they found accused planning to commit dacoity or making preparation for committing dacoity. What PW1 to PW3 had seen only running over some persons by throwing some objects in the play groundThe prosecution alleged that the accused came there in motor cycles and motor cycles also were seized. The link between the motor cycles and any of the accused is not proved by producing the registration particulars of the motor cycle. Mere fact that the accused had possessed some arms is not sufficient to prove the charge of preparation to commit dacoity. In Chaturi Yadav.

vState of Bihar ( AIR 1979 SC 1412 ) the Hon'ble Supreme Court held that by simply showing that some persons were found in the school premises which was close to the market at 1.00 am and some of them were armed with guns and some had cartridges and others ran away itself is not sufficient to prove that they had assembled for the purpose of committing dacoity. Therefore the evidence tendered by the prosecution in this case alone would not prove the charge under Sec399 I.P.C. against the accused beyond reasonable doubt. Exts. P10 to P17 also are not helpful for the prosecution to prove any of the ingredients of the charge alleged. The prosecution is not successful to prove the charge under Sec. 399 I.P.C. against the accused who faced trialThe accused Nos. 2, 3, 5,6, 7, 8 and 9 are found not guilty of the charge under Sec. 399 I.P.CThe point is answered against the prosecution.”

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