LIJU Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is one among the accused, A14, in Crime No. 70/2005 of Sooranad Police Station. After investigation of the crime, final report was laid against the accused in the aforesaid crime for offences punishable under Sections 143, 147, 148, 332 and 307 r/w Section 149 of Indian Penal Code and Section 3(2) of the Prevention of Damage to Public Properties Act, for short, 'PDPP Act'. Petitioner, it is submitted, appeared in the committal proceedings, but, after such committal when the case came up before the Sessions Court, he kept himself aloof. Trial against the coaccused proceeded before the Sessions Court ended in their acquittal. Annexure A is the copy of that judgment. Banking upon the order of acquittal rendered in favour of the rest of the accused in the aforesaid case, petitioner has filed the above petition for quashing the proceedings now pending against him as Sessions Case No. 1976 of 2011 before the Additional District and Sessions Court (Adhoc) II, Kollam, which has arisen from the split up case after its inclusion in the long pending cases. The learned counsel adverting to the reasoning given by the learned Sessions Judge in Annexure A judgment after appreciation of the evidence tendered in the trial of the case against the coaccused contended that no useful purpose will be served even if the trial in the present case proceed against the petitioner, A14. There was total paucity of evidence in the previous trial, and in no way the prosecution will be able to improve its case or to establish the guilt of the petitioner for the offences imputed against him, is the submission of the counsel. Though the Full Bench decision of this court in "Moosa v Sub Inspector of Police", 2006 1 KerLT 552 has held that a judgment rendered previously in the trial against the coaccused of the same case cannot have any significance in the trial proceeded against the accused who was not available earlier, adverting to the observations made in that decision in paragraph 15, it is contended that such judgment can be looked into, according to the counsel, where the very substratum of the case is shown to be lost. On the facts and circumstances of the present case reliance or reference to Annexure A judgment could be had, and it would indicate that the very substratum of the prosecution case has been destabilized due to paucity of evidence, submits the counsel. Judgment rendered after trial against the coaccused, which has ended in an order of acquittal in favour of such accused, whatever be the reasons thereof, cannot be given any significance or moment in determining the question whether the prosecution of the accused in the split up case after securing his presence has to be proceeded or not. Observations made in paragraph 15 of Moosa's case do not lay down any proposition that the reasoning in the judgment against the coaccused can be looked into for considering such a question. In a case where the prosecution has proceeded for any offence which required sanction or the investigation itself was per se illegal, then, it may be a case where the previous judgment can be looked into to consider whether the substratum of the prosecution case had been destabilized, after trial of the coaccused. The reasoning given in the previous decision of the court ending in acquittal of the accused tried for paucity of evidence to sustain the prosecution case, cannot be looked into nor to be considered to examine whether the substratum of the prosecution case was totally destroyed by such judgment. That being so, I find, there is no merit in the submissions made by the counsel relying on Annexure A judgment to persuade me to hold that trial against the petitioner in the present case will be an exercise in futility. At this stage the learned counsel for the petitioner submits that the right of the petitioner to canvass whatever ground available to him at the time of hearing to seek a discharge under Section 227 of the Code of Civil Procedure may be reserved. No such reservation need be made by this court as he can canvass plea of discharge, if that stage of the case is not over, provided he has sustainable grounds to do so.