IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 Crl.MC.No. 1143 of 2011() ------------------------- CC.726/2003 & L.P.NO.117/2004 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD CRIME NO.680/1997 OF KASARAGOD POLICESTATION .................... PETITIONER(S): 3RD ACCUSED: --------------------------- ABDUL RAHIM, S/O.MAMU, T.K.HOUSE, FORT ROAD, KASARAGOD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE: --------------------------------- 1. STATION HOUSE OFFICER, KASARAGODE. 2. STATE REP.PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1143 of 2011 -------------------------------------- Dated this the 12th day of April, 2011. ORDER Petitioner is accused No.5 in C.C.No.726 of 2003 and L.P.No.117 of 2004 of the court of learned Chief Judicial Magistrate, Kasaragod arising from the final report in Crime No.680 of 1997 of Kasaragod Police Station for offences punishable under Sections 143, 147, 148 and 427 read with Section 149 of the Indian Penal Code. Case is that on 07.12.1997 at about 6.30 p.m. petitioners and others formed unlawful assembly, pelted stones at the office of the Indian Union Muslim League and committed mischief. Accused 2, 3 and 6 faced trial in C.C.No.676 of 2004 and were acquitted by Annexure-I, judgment under Section 248 (1) of the Code of Criminal Procedure (for short, “the Code”) for want of evidence. Later the Assistant Public Prosecutor acting on an order issued by the State Government filed application under Section 321 of the Code to withdraw the prosecution against accused No.4. That application was allowed and the learned Chief Judicial Magistrate by Annexure-II, order permitted prosecution to withdraw from prosecution of accused No.4. Accused 1 and 5 remain. Case against petitioner/accused No.5 was refilled as C.C.No.726 of 2003 and included in the Long Pending Register as L.P.No.117 of 2004. Petitioner/accused No.5 seeks to quash proceeding against him in the light of Annexures-I and II and a settlement allegedly reached with the defacto complainant. I have heard learned counsel for petitioner and the learned Public Crl.MC No.1143/2011 2 Prosecutor. 2. It is seen from Annexure-II, order dated February 21, 2006 that the learned Chief Judicial Magistrate has permitted prosecution to withdraw from the case against accused No.4. Section 321 of the Code states that withdrawal from the prosecution could be of ‘any person either generally or in respect of anyone or more of the offences for which he is tried’. It is seen from Annexure- II, order that the withdrawal was only with respect to accused No.4. But, the reasons stated by the Assistant Public Prosecutor for withdrawal from the case against accused No.4 must apply to the petitioner also. 3. It is seen from Annexure-I, judgment that PWs 1 and 2 examined by the prosecution did not support it. It is stated in paragraph 5 of Annexure-I, judgment that it came out from PW1 that the matter is settled through mediation. PW2 who was examined by the prosecution also did not support it. Accordingly prosecution evidence was closed. The examination of accused 2,3 and 6 under Section 313 of the Code was dispensed with. 4. Though no settlement as such is produced before this Court it is seen from Annexure-I, judgment that the matter is settled. Case is of the year 1997. It is not shown that the defacto complainant or anybody else challenged Annexure-II, order concerning accused No.4. Having regard to these aspects I am inclined to think that sending petitioner for trial is only an unsuccessful exercise and in the circumstances this Court could exercise jurisdiction under Section 482 of the Code. Crl.MC No.1143/2011 3 Resultantly this Criminal Miscellaneous Case is allowed. The final report in Crime No.680 of 1997 of the Station House Officer, Kasaragod to the extend it concerned petitioner and proceeding against petitioner (accused No.5 in Crime No.680 of 1997 of the Station House Officer, Kasaragod) in C.C.No.726 of 2003 and L.P.No.117 of 2004 of the court of learned Chief Judicial Magistrate, Kasaragod are quashed. THOMAS P.JOSEPH, Judge. cks