IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.MC.No. 3078 of 2009 -------------------------------- CC.454/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................................................... PETITIONER(S)/2ND ACCUSED: ----------------------------------------------- VIJAYAN,S/O.KRISHNANKUTTY, THERIVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. SUB INSPECTOR OF POLICE, POOVAR, POOVAR POLICE STATION,THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3078 OF 2009 ------------------------------------------ Dated 24th September 2009 O R D E R Petitioner is the second accused in C.C.454/2001 on the file of Judicial First Class Magistrate-II, Neyyattinkara. Prosecution case against five accused was that on 22/11/2000 at about 8 a.m, all of them formed themselves into an unlawful assembly with the common object of widening the pathway by destroying mud wall of the property of de facto complainant Sasidharan and armed with deadly weapons like spades and pick-axe trespassed into the property and destroyed the mud wall and widened the pathway and thereby committed the offences under Sections 143, 147, 148, 447 and 427 read with Section 149 of Indian Penal Code. As petitioner was absconding, case as against him was split up and re-filed as C.C.415/2006. Other four accused were tried by the learned Magistrate. Under Annexure-6 judgment, finding that the de facto complainant, whose mud wall was destroyed and property was trespassed CRMC 3078/09 2 deposed that he could not identify the persons who committed the offences and as Pws.2 and 3 the eye witnesses turned hostile, learned Magistrate acquitted all the four co-accused. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against him contending that in view of the order of acquittal as against the co-accused, even if petitioner is to be tried, there is no chance of conviction and in such circumstances, case is to be quashed. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. As is clear from annexure-1 final report filed by Sub Inspector of Police, based on which learned Magistrate has taken cognizance for the offences, there is no specific case as against the petitioner except that he was also one among the members of the unlawful assembly who allegedly trespassed into the property of de facto complainant after demolishing the mud wall and widened the pathway. There is no allegation of any overt act as against the petitioner. In the light of Annexure-6 judgment whereunder, all the other four accused, who are other CRMC 3078/09 3 members of unlawful assembly, were acquitted, it is clear that even if petitioner is to be tried, there is no chance for a successful prosecution. The de facto complainant has already deposed before the court that he could not identify the persons who committed the offences. Eye witness already turned hostile and deposed that they did not witness the incident. In such circumstances, it will only be a futile exercise and would only result in waste of valuable time of the court. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C.415/2006 now pending as L.P.74/2008 on the file of Judicial First Class Magistrate-II, Neyyattinkara is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.