(2013) 304 KLR 387

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934

Crl.MC.No. 215 of 2013 ()

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SC.460/2000 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II, KOZHIKODE CRIME NO. 284/1996 OF NADAPURAM POLICE STATION , KOZHIKODE

PETITIONER/ACCUSED NO.1:

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ABBAS T.K, AGED 38 YEARS S/O. ANDHRU HAJEE, THELKANDIYIL HOUSE, VELLUR AMSOM PERODU DESOM, VADAKARA TALUK.

BY ADV. SRI.P.M.HABEEB

RESPONDENT/COMPLAINANT(S):

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THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-31. (CRIME NO.284/96 OF NADAPURAM POLICE STATION).

BY PUBLIC PROSECUTOR SMT.S.HYMA

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ALONG WITH CRL.M.C.NO.216/2013 ON 20-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 215 of 2013 ()

APPENDIX

PETITIONER'S EXHIBITS

1. ANNEXURE A : CERTIFIED COPY OF FINAL REPORT DTD.8.6.2000.
2. ANNEXURE B : CERTIFIED COPY OF THE JUDGMENT DTD.29.5.2003.

RESPONDENTS' EXHIBITS: NIL // TRUE COPY // TKS P.S. TO JUDGE 

C.T.RAVIKUMAR, J.

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Crl.M.C.Nos.215 & 216 of 2013

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Dated 20th February, 2013

Head Note:-

Criminal Procedure Code, 1973 - Section 482 - Judgment of acquittal of co-accused - Whether act as a bar for the subsequent trial of absconding accused - a judgment of acquittal of co-accused would not act as a bar for the subsequent trial of absconding accused - However where the very substratum of the prosecution case is lost with the pronouncement of judgment which may be an exception to the rule - In such a situation sending the co-accused for trial would be of no use.

O R D E R

The former petition has been filed by the first accused in Crime No.284 of 1996 of Nadapurm Police Station which is now pending as S.C.No.284 of 2011 on the files of the Court of Additional Sessions Judge, Fast Track (Adhoc II), Kozhikode. The petitioner in the latter petition is the fourth accused in the said crime which is now pending before the same court as S.C.No.411 of 2011. The aforesaid crime was registered against the petitioners and three others alleging commission of offences under Sections 3 and 5 of the Explosive Substances Act. Accused Nos.2, 3 and 5 stood the trial in S.C.No.460 of 2000 before the same court and they were acquitted as per Annexure-B order. The petitioners who are respectively accused Nos.1 and 4 were then absconding. Subsequently, they appeared before the trial court and they were enlarged on bail. These petitions have been filed seeking quashment of the final report in Crime No.284 of 1996 of Nadapurm Police Station (Annexure-A in both cases) and all further proceedings in the aforesaid sessions cases arising out of Crime No.284 of 1996 of Nadapurm Police Station.

2. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor.

3. Evidently, the petitioners' prayer for quashment of the proceedings against them is founded on Annexure-B which is the judgment of acquittal in respect of their co-accused viz., accused Nos.2,3 and 5 in the aforesaid crime who stood the trial in S.C.No.460 of 2000. In the light of the Full Bench decision of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552 (F.B.) a judgment of acquittal of co-accused would not act as a bar for the subsequent trial of absconding accused. However, a scanning of the said decision would reveal that this Court carved out an exception for the application of the said law laid down therein. It is held:-

"It may however be a case where the very substratum of the case is lost which may be an exception to this rule."

Therefore, essentially, the question is whether Annexure-B judgment whereby the co-accused were acquitted had shattered the very substratum of the prosecution case. In Moosa's case (supra) the Full Bench held that the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting a relief to quash the proceedings. It is after making such an observation that this Court held that an exception to the said rule is a case where the very substratum of the prosecution case is lost. The learned counsel for the petitioners taken me through Annexure-B judgment for the limited purpose of satisfying and establishing the contention that the substratum of the prosecution case is lost with the pronouncement of Annexure-B judgment. The prosecution had no case that anybody had seen someone making bomb or handling explosive substances in the mosque. PW1 and PW3 who were cited as eye witnesses deposed that they went to the mosque for performing namez and according to them at that time people rushed to the mosque stating that a bomb had exploded. According to them, the explosion was at 4 p.m. on 4.9.1996. They had not seen anybody making bomb or handling explosive substances in the mosque. PW4, the then Sub Inspector of Police, Nadapuram deposed only to the effect that when he rushed to the scene of incident he saw about 15 persons fleeing from the scene of occurrence but, he too had not deposed that he had seen anybody manufacturing bombs or handling explosive substance. In paragraph 11 of Annexure-B judgment after analysing the oral testimonies of PW1 and PW3 the learned Sessions Judge observed that neither PW1 nor PW3 had a case that they had seen anybody making bomb or handling explosive substance in the mosque. PW4 is the other witness and in fact, he was the then Sub Inspector of Police, Nadapuram. He would depose that when he rushed to the scene of incident, he saw about 15 persons fleeing from the scene of incident. After analyzing his evidence the learned Sessions Judge observed that just because of the fact that PW4 had seen the accused fleeing from the scene of incident along with the others it could not be concluded that they had played any part in the explosion. Based on such findings the accused who stood the trial in S.C.No.460 of 2000 were acquitted as per Annexure-B judgment. Those observations thus adversely affected the very substratum of the prosecution case. In such situation, I am of the considered view that sending the petitioners for trial would be of no use. Though the petitioners were not available for trial along with the co-accused who stood the trial they are entitled to the benefit of Annexure-B judgment as there can be little doubt with respect to the fact that the very substratum of the prosecution case has been lost with the pronouncement of Annexure-B judgment. In such circumstances, the decision in Moosa's case (supra) will not stand in the way of invocation of power under Section 482 Cr.P.C. to terminate the proceedings against the petitioners who are respectively accused Nos.1 and 4 in Crime No.284 of 1996 of Nadapurm Police Station. In fact, the case on hand will fall within the exception to the law laid in Moosa's case (supra). I have no doubt that in view of the position obtained in this case, allowing continuation of the proceedings would not be in the interest of justice in the light of Annexure-B judgment and if they are permitted to be continued that would result in loss of the invaluable time of the court, only.

In the above circumstances, these Crl.M.Cs are allowed. Annexure-A final report in Crime No.284 of 1996 of Nadapurm Police Station and all further proceedings pursuant thereto in S.C.No.284 of 2011 as against the petitioner in Crl.M.C.No.215 of 20013 and the proceedings in S.C.No.411 of 2011 as against the petitioner in Crl.M.C.No.216 of 20013, on the files of the Court of Additional Sessions Judge, Fast Track(Adhoc II), Kozhikode are hereby quashed.

Sd/- C.T.RAVIKUMAR Judge TKS