IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.MC.No. 1521 of 2011() ------------------------- LP.NO.84/07 IN CP.151/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... (CRIME NO.60/01 OF ANCHALAMMOODU POLICE STATION) ..... PETITIONER(S): 8TH ACCUSED: ------------------------------------------------- SANTHOSH,S/O.PADMANABHAN, SANTHOS BHAVANAM,CHITTAYAM CHERRY, PANAYAM VILLAGE ,KOLLAM BY ADVS. SRI.SHABU SREEDHARAN, SRI.C.K.PRASAD, SRI.P.SANJAY SHENOI, SRI.T.S.ANURAJ. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA,REPRESENTED BY THE S.I.OF POLICE, ANCHALAMMOODU, KOLLAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1521 of 2011 -------------------------------------- Dated this the 3rd day of June, 2011. ORDER Petitioner is the eighth accused in Crime No.60 of 2001 of Anchalumoodu Police Station, C.P.No.151 of 2005 and L.P.No.84 of 2007 of the court of learned Judicial First Class Magistrate-I, Kollam for offences punishable under Sections 143, 147 and 148 read with Section 149 of the Indian Penal Code and Section 3 of the Explosives Substances Act. Prosecution case is that on 26.02.2001 at about 12.25 p.m. nine accused including petitioner formed unlawful assembly and the second accused among them burst explosives. Petitioner surrendered before the court and was released on bail. When the accused other than petitioner and fifth accused faced trial in S.C.No.1587 of 2006 petitioner was not available. In that case prosecution examined PWs 1 to 4, none of whom supported the prosecution. Learned Sessions Judge thereon acquitted the accused who faced trial under Section 232 of the Code of Criminal Procedure by Annexure-3, judgment. Petitioner seeks benefit of that acquittal. It is submitted that Annexure-3, judgment destroys the substratum of prosecution case and hence having regard to the nature of evidence tendered by PWs 1 to 4 prosecuting the petitioner is a wasteful exercise. It is therefore prayed that proceeding against petitioner may be quashed. I have heard learned Public Crl.MC No.1521/2011 2 Prosecutor also. 2. It is seen from Annexure-2, final report that apart from alleging that accused 1 to 9 including petitioner exhorted CW1 to stay there, overt act is attributed to the second accused that he burst explosive taken from his bag. In otherwords petitioner is sought to be implicated in the incident on the allegation that he is a member of the unlawful assembly and he shared common object with the other accused including the second accused against whom the overt act is attributed. I stated that the accused other than petitioner and fifth accused faced trial and were acquitted. It is seen from Annexure-3, judgment that though CW1, the defacto complainant was examined as PW1 and he referred to some incident, he denied involvement of the accused who faced trial (including the second accused) and failed to identify them. Other material witnesses also did not support the prosecution. Thus, so far as the alleged unlawful assembly of the accused other than petitioner and fifth accused and alleged user of explosive is concerned, there is a finding against the prosecution. In view of that, merely on the allegation that petitioner was a member of the unlawful assembly, it is not fruitful to prosecute him. Hence I am inclined to interfere. Crl.MC No.1521/2011 3 Resultantly, this Criminal Miscellaneous Case is allowed. Proceeding against petitioner (eighth accused in Crime No.60 of 2001 of Anchalumoodu Police Station) in C.P.No.151 of 2005 and L.P.No.84 of 2007 of the court of learned Judicial First Class Magistrate-I, Kollam are quashed. THOMAS P.JOSEPH, Judge. cks