Prosecution cannot continue if its foundation is undermined by the acquittal of co-accused, under Section 482 of the CrPC.

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 petitioners are the accused in S.C.No.1235/2016 on the file of the Assistant Sessions Court, Kottarakkara arising from Crime No.2178/2013 of Chadayamangalam Police Station. The above case is chargesheeted against the petitioners alleging offences punishable under sections 143, 147, 148, 324, 326, 307 r/w 149 of the Indian Penal Code and section 27 of the Arms Act . It is submitted that the co-accused were already acquitted as per Annexure-A2 judgment.

3. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioners submitted that the co- accused were already acquitted by the trial court and the continuation of the trial against the petitioners will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioners have to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code.

4. 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 petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of Annexure-A2 judgment, by which the co-accused is acquitted:

'7. Point No. 1: In the testimony given by the injured and occurrence witnesses, they have not deposed anything incriminating the accused persons herein. In the said circumstances, I find that the prosecution failed to prove the allegations against the accused persons 1 to 7 and therefore the accused persons 1 to 7 are entitled to an order of acquittal as per section 232 Cr.PC. Point No. I is found in favour of the accused persons 1 to 7.

8. Point No. 2:- In the result, the accused persons 1 to 7 are found not guilty of the offence punishable under Sections 143 , 147, 148, 324, 326 and 307 read with 149 IPC and Section 27 of the Arms Act , 1959. The accused persons 1 to 7 are therefore acquitted of the said offences as per Section 232 Cr.PC and they are set at liberty. The case against the accused persons 8 and 9 are split up and refiled. Address the Honourable Sessions Judge for new Session Case number for the case split up against the accused persons 8 and 9. The case records and material objects should be preserved for the trial against the accused persons 8 and 9.'

5. 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.

Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in S.C.No.1235/2016 on the file of the Assistant Sessions Court, Kottarakkara arising from Crime No.2178/2013 of Chadayamangalam Police Station are quashed.