IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY,THE 6TH DAY OF MAY 2014/16TH VAISAKHA, 1936 Crl.MC.No. 1087 of 2014 () SC.NO. 981/2006 OF ADDL. DISTRICT & SESSIONS COURT, VADAKARA CRIME NO. 166/2006 OF VATAKARA POLICE STATION, KOZHIKODE PETITIONER/2ND ACCUSED : FAISAL, S/O.KUNHIMOOSA, AGED 34, RESIDING AT EDAVANA HOUSE, MANJAKKAL MAHE, KOZHIKODE DIST. BY SENIOR ADVOCATE SRI.N.DHARMADAN BY ADV.SMT.D.P.RENU RESPONDENTS/COMPLAINANTS : 1. SUB INSPECTOR OF POLICE VADAKARA POLICE STATION, VADAKARA-673 101. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031 R1 & R2 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-03-2014, THE COURT ON 06-05-2014 PASSED THE FOLLOWING: Mn 2/- Crl.MC.No. 1087 of 2014 () APPENDIX PETITIONERS' ANNEXURES : ANNEXURE 1 COPY OF FINAL REPORT DATED 29/3/2006 BY IST RESPONDENT. ANNEXURE II COPY OF FIR NO.166 DATED 10/3/2006 BY IST RESPONDENT. ANNEXURE III COPY OF JUDGMENT IN [CASE NUMBER] DATED 27/2/2012 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT 6, VADAKARA. ANNEXURE IV COPY OF ORDER DATED 6/3/2012 PASSED BY ADDL.DISTRICT AND SESSIONS COURT, VADAKARA RESPONDENT(S)' EXHIBITS : NIL TRUE COPY P.S. TO JUDGE Mn [ENTITY], J. [CASE NUMBER] Dated this the 6th day of May, 2014 O R D E R
This is an application filed by the original 2nd accused in [CASE NUMBER] ([CASE NUMBER] of Vadakara Police Station of Kozhikode District) on the file of the Additional District and Sessions Court (Special Court of NDPS cases, Vadakara) to quash the proceedings as against him under [SECTION] of the [ACT] (hereinafter called 'the Code').
2. It is alleged in the petition that, the petitioner was the 2nd accused in [CASE NUMBER] of Additional District and Sessions Court, Vadakara. There is no specific offence alleged against him. He is aggrieved by the final report dated 29.03.2006, alleging offence under [SECTION], [SECTION] and [SECTION] of the [ACT] on the ground that, he has made an attempt along with other accused persons to run over and attack the defacto- complainant. He is employed in Quator. The Vadakara Police registered a case against the petitioner as [CASE NUMBER] on 10.03.2006 including the petitioner as 2nd accused, alleging that he was travelling as a pillion rider in the motor cycle without any registration number and attempted to run over the defacto-complainant, when the first accused was riding the said motor cycle and created a traffic jam. He has not involved in the above crime and he had not committed any offence. The accused Nos. 3, 4, 6 and 7 were tried and they were acquitted as per Annexure- III judgment. So there is no possibility of any conviction against him. So he prayed for quashing Annexure-I final report, as against him invoking the power under [SECTION] of the 'Code', hence the petition.
3. Heard the learned counsel for the petitioner and learned Public Prosecutor appearing for the respondents.
4. The learned counsel for the petitioner submitted that, no purpose will be served by proceeding against the petitioner who is the 2nd accused, as some of the accused persons were tried and acquitted by the learned Sessions Judge after trial as per Annexure-III judgment. So according to him, the case of the prosecution has been shattered and no purpose will be served by allowing the prosecution to continue as against the petitioner. Further the offence under [SECTION] of [ACT] is not attracted as well. He had relied on the decisions reported in [PRECEDENT] and [PRECEDENT] in support of this case.
5. On the other hand, the learned Public Prosecutor argued that, he was absconding and acquittal of other accused persons is not a ground for quashing the proceedings as against the petitioner, as he has not faced trial and other absconding accused persons have now appeared before the court below and the main allegations are against first and 2nd accused who did not appear and face trial in this case. According to the learned Public Prosecutor, it is not a fit case to quash the proceedings.
6. I have considered the rival contentions of both parties in detail.
7. The case of the prosecution was that, on 10.03.2006, at about 3.45 p.m., while CW1, who was in traffic control duty near Vadakara, new bus stand, accused Nos. 1 and 2 (petitioner herein) came in a motor cycle without registration number, violating the traffic signal and created a traffic jam and when he went there to question the same, accused Nos. 3 to 6 came in two other motor motor cycles with Reg.No.PY 03/4630 and PY 03/4574 and first accused threatened him by stating "j} oLRraL j]R# KqO y]YVj$" and they tried to assault him and took away the motor cycle and attempted to dash against CW1 and threatened to kill him and accused Nos. 1 and 2 furnished false address and thereby they have committed the offence punishable under [SECTION], [SECTION], [SECTION] of the [ACT]. It is an admitted fact that, on the basis of the complaint given by CW1, a crime was registered by Vadakara Police as [CASE NUMBER] of Vadakara Police Station, alleging offences under [SECTION], [SECTION], [SECTION] of the [ACT] and after investigation final report was filed against the accused persons including the present petitioner before the Judicial First Class Magistrate Court, Vadakara. Learned Magistrate committed the case to the Court of Sessions and the case was originally taken cognisance by the learned Sessions Judge, Kozhikode, as [CASE NUMBER] and it was made over to Additional Sessions Court, Vadakara, for disposal. It is also an admitted fact that, originally accused Nos. 3 and 6 alone appeared and the case against accused Nos. 1, 2, 4, 5 and 7 were transferred to the register of long pending cases as [CASE NUMBER]. Thereafter, accused Nos. 4 and 7 in the case appeared and case against them was re- filed as [CASE NUMBER] and it was clubbed with [CASE NUMBER] and accused Nos. 3, 4, 6 and 7 were tried and after trial, they were acquitted as per Annexure-III judgment.
8. It is seen from the report of the Additional Sessions Judge that, after disposal of [CASE NUMBER], the original 5th accused appeared and the case against him was re-filed as [CASE NUMBER] and thereafter, again he absconded and so the case against him was transferred to the register of long pending cases as [CASE NUMBER]. Thereafter, he again surrendered and the case against him was refiled as [CASE NUMBER] and that is pending before that court. It is also mentioned in the report that, original first accused also surrendered and the case against him was re-numbered as [CASE NUMBER] and it was pending before that court and [CASE NUMBER] pending against the original 5th accused was clubbed with [CASE NUMBER]. It is also mentioned in the report that, the present petitioner, who is the 2nd accused in the original case, surrendered and the case against, him was re-filed as [CASE NUMBER] and thereafter he absconded again and since he did not appear, thereafter, the case against him has been transferred to register of long pending cases as [CASE NUMBER] and that is pending before that court. So considering these aspects, it is seen that the present petitioner though appeared later, again absconded and the case against him is now pending as [CASE NUMBER] and L.P. warrant is pending against him. It was at that time he had filed this petition to quash the proceedings.
9. The allegations in the present petition is that, Annexure-I final report did not disclose any offence against the present petitioner and so it is liable to be quashed. But on going through Annexure-I, it will be seen that, there is specific allegations against the present petitioner also, as it was he who travelled in the motor cycle without registration number along with first accused and created the problem and he along with first accused tried to go away from that place and at that time the other accused persons came in two other motor cycles and quarrelled with CW1, that created obstruction to the duty of CW1 and also when the questioning was going on, first accused threatened him and he took away the motor cycle from the place in an attempt to assault CW1 and since he moved away, no injury has been caused to him. It is also stated in the final report that, CW1 immediately informed the matter to the police station and the Additional Sub Inspector came there and took away the accused persons and the motor cycles and after medical examination produced them before the Principal Sub Inspector. In the meantime, CW1 has given a written complaint on the basis of which a crime was registered and as directed by the Principal Sub Inspector, the Additional Sub Inspector conducted the investigation and later it was verified by the Principal Sub Inspector and the final report was filed. It is also seen from Annexure-I final report that, accused Nos. 1 and 2 have given false name and address so as to mislead the investigating officer and later the investigating officer found that the names and addresses given by them were not correct and so he gave a report showing their correct names and addresses and filed a report incorporating [SECTION] of [ACT] as well against them. So under the circumstances and on going through the allegations in the final report, it cannot be said that, there were no allegations against the present petitioner so as to quash the proceedings as against him as claimed by the counsel for the petitioner.
10. Further, it is true that, in the decision reported in [PRECEDENT], it has been observed that, merely giving a false address or wrong identification to attest the affidavit by the person before the oath commissioner, it cannot be said that he had committed the offence punishable under [SECTION] of the [ACT]. Though [SECTION] of the [ACT] is not as such applicable, giving a false address, so as to get themselves exonerated from the case and divert the investigation on the part of the accused will amount to an offence and it is for the court to consider the allegations and frame appropriate charge in such circumstances. Merely because a wrong provision was quoted by the police officer is not a ground to quash the proceedings, if the allegations in the final report and the materials collected will disclose some other offence, then there is no bar for the court to frame charge under the correct provisions and proceed against the accused. Since the present petitioner did not appear, the question as to whether he had committed any offence by giving false address etc. are matter to be considered after evidence. So under the circumstances, the dictum laid down in the above decision is not applicable to the facts of this case.
11. The learned counsel for the petitioner relies on Annexure-III judgment by which accused Nos.3, 4, 6 and 7 were acquitted by the learned Sessions Judge. I have perused the judgment of the learned Additional Sessions Judge. There is nothing mentioned about the arrest of the accused persons by PW6 and also the investigation conducted by PW5. So it cannot be said that, the judgment will be helpful to come to a conclusion that, the entire prosecution case has been shattered as against all accused persons who did not face trial as well so as to get the benefit of that judgment to acquit the accused persons who did not face trial.
12. In the decision reported in [PRECEDENT], this court has held that, acquittal of some of the accused by itself is not a reason to bar the trial in the case of other accused. Such judgment will be admissible only to show, as to who were the parties in the earlier proceedings or the factum of acquittal. Further in the same decision, it has been held that, acquittal of some of the accused after trial will not entitle co-accused for acquittal invoking the inherent powers. Further the same decision has been held that, unless it was able to come to a conclusion that, by virtue of the previous judgment, the entire prosecution case has been shattered, it cannot be said that, acquittal of some of the accused persons will entitle the co-accused get acquittal, without facing trial. In this case, the present petitioner did not appear and so, there is no possibility for CW1 to speak about the present accused person and regarding his involvement in the commission of crime. Further, the reasons stated by the presiding officer in Annexure-III judgment, need not necessarily be binding on his successor officer, as he has to evaluate the evidence produced before him, while trying the present accused by examining the witnesses and come to an independent conclusion regarding the involvement of the present accused by that presiding officer.
13. The dictum laid down in the decision reported in [PRECEDENT] relied on by the learned counsel for the petitioner is also not applicable to the facts of this case. That was a case where one of the accused in a case taken on file under the provisions [SECTION] of the [ACT] applied for quashing the proceedings on the ground that, he was not the director of the company at the relevant time and he produced documents before the Hon'ble High Court to prove that fact and sought for quashing the proceedings but the Hon'ble High Court did not consider the documents and did not invoke [SECTION] of the 'Code' to quash the proceedings on the ground that it is a matter for defence to be proved by the accused at the time of trial. This was challenged by that accused before the Hon'ble Supreme Court. The Hon'ble Supreme Court, after considering the materials available on record, came to the conclusion that the documents produced are public documents which can be relied on by the court in appropriate cases and driving the accused to face a trial, if the documents produced will prima facie prove that, he was not the director of the company at the relevant time and as such, even if he is proceeded against, there is no possibility of conviction, will amount to abuse of process of court, as against that accused person and after relying on the documents quashed the proceedings as against that accused persons. That was not the case in this case. So the dictum laid down in the above decision is also not applicable to the facts of this case. So considering the circumstances, this court feels that, it is not a fit case to invoke the power under [SECTION] of the 'Code' to quash the proceedings as against the petitioner, who was the absconding accused in the above case and the petitioner is not entitled to get the relief claimed in the petition and the same is liable to be dismissed.
In the result, this criminal miscellaneous case is dismissed. Office is directed to send the back records immediately to the court below.
[ENTITY], Judge True Copy P.A. to Judge ss