IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941 Crl.MC.No.6550 OF 2019 SC 489/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI CP 83/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MALAPPURAM [CASE NUMBER] OF VENGARA POLICE STATION , MALAPPURAM PETITIONER/ACCUSED: VENGARA SALAM @ MUSTHAFA, AGED 42 YEARS S/O.MUHAMMED KUTTY, MULLAN HOUSE, PARAPPUR VENGARA, MALAPPURAM DISTRICT. BY ADV. SRI.SOJAN MICHEAL RESPONDENT/STATE: THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. SRI. M.S BREEZ SR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No.6550 OF 2019 2 ORDER
This petition is filed under [SECTION] of the [ACT]
2. The petitioner herein is the accused in [CASE NUMBER] on the file of the Additional Sessions Court-II, Manjeri. The aforesaid case has arisen from [CASE NUMBER] of the Vengara Police Station registered alleging offence punishable under [SECTION] of the [ACT].
3. The petitioner is the 2nd accused in the final report. Since the petitioner was not available, charge was laid before the learned Magistrate categorizing him as an absconding accused. The committal proceedings were initiated against accused Nos. 1, 3 and 4. The case was numbered as [CASE NUMBER] by the Court of Session, Manjeri. The 1 st accused absconded and the case was proceeded against accused Nos.2 and 3. By judgment dated 20.02.2015, the accused Nos.2 and 3 were acquitted of all charges. It appears that thereafter the case of the petitioner was committed to the Court of Session and renumbered as [CASE NUMBER], which is now pending before the Additional Sessions Court-II, Manjeri.
4. The learned counsel appearing for the petitioner submitted that the de facto complainant and his brother were the prime witnesses cited by the prosecution to prove the charge. They were examined as PWs. 1 and 2 in the earlier trial. PW1 entered the box and deposed that he did not even furnish a complaint before the police. PW2 also denied that he had any knowledge of the prosecution version. The learned Sessions Judge after evaluating the facts and circumstances, came to the conclusion that no incriminating circumstances whatsoever has been brought on record as against the accused. The 313 statement was dispensed with and the accused Nos.2 and 3 were acquitted of all charges. The learned counsel also referred to the deposition of PWs. 1 and 2 which has been produced as Annexure II. According to the learned counsel, the very edifice of the prosecution case having been destroyed, no purpose would be served by directing the petitioner to undergo the ordeal of a trial. In order to bolster his submissions, the learned counsel relied on the decisions of this Court in [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
5. Heard the learned Senior Public Prosecutor, who submitted that an absconding accused is not entitled to the relief sought for.
6. I have considered the submissions advanced and have gone through Annexure I final report, Annexure II, deposition of prosecution witnesses in the earlier trial and Annexure III judgment. In paragraph (11) of the judgment, the learned Sessions Judge has opined that the prosecution has utterly failed to bring on record any evidence whatsoever against the accused.
7. As held by a three Judge Bench of this Court in [PRECEDENT] (supra), though the reasoning of the judgment contained or appreciation of evidence in the case of a co-accused therein are not grounds to attract any relief under [SECTION] of the [ACT], a case where the substratum of the case is lost is an exception to the above rule.
9. I am of the firm view that no purpose is going to be served by directing the petitioner herein to face the trial at this stage. It can only be a futile exercise and will only serve to waste precious judicial time, which can be used for more productive work. The prospects of conviction is extremely bleak as no evidence of worth could be adduced by the prosecution during the previous trial. This Court will be justified in quashing the proceedings under [SECTION] of the Code.
In the result, this petition is allowed. Annexure-I final report and all proceedings pursuant thereto against the petitioner now pending as [CASE NUMBER] on the file of the Additional Sessions Court-II, Manjeri are quashed.
[ENTITY], JUDGE IAP APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT IN [CASE NUMBER] OF VENGARA POLICE STATION DATED 15.09.2009. ANNEXURE II CERTIFIED COPY OF THE DEPOSITION IF PW1/CW1 IN [CASE NUMBER] DATED 16.01.2015. ANNEXURE III COPY OF THE JUDGMENT IN [CASE NUMBER] DATED 20.02.2015 OF THE ADDITIONAL SESSIONS COURT-II, MANJERI.