IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 Crl.MC.No. 5059 of 2010() ------------------------- CC.54/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... PETITIONER(S): ACCUSED NO.6: -------------------------------------------------- P.T.K.ANIL KUMAR, AGED 36 YEARS, S/O.NANU, R/AT SUSHAMA NIVAS, PANTHAKKAL, MAHE. BY ADV. SRI.K.P.HARISH RESPONDENT(S): STATE: --------------------------------------- STATE REPRESENTED BY 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 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.5059 of 2010 -------------------------------------- Dated this the 8th day of March, 2011. ORDER Petitioner is accused No.6 in L.P.C.No.1 of 2007 of the court of learned Judicial First Class Magistrate-II, Hosdurg for offences punishable under Sections 143, 147, 448, 427, 323, 363 and 342 read with Section 149 of the Indian Penal Code. Petitioner seek to quash proceeding against him in view of acquittal of some of the other accused as per Annexures-II and III, judgments of learned Judicial First Class Magistrate-II, Hosdurg. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Learned counsel submitted that in the light of the decision of this Court in Moosa v. Sub Inspector of Police (2006(1) KLT 552) and in particular the observations in paragraph 50, proceeding against petitioner could be quashed in the light of Annexures-II and III since the substratum of the prosecution case has been destroyed by the acquittal of remaining accused. Learned Public Prosecutor submitted that the prayer of petitioner to quash proceeding cannot be accepted acting upon Annexures-II and III, judgments. 3. Prosecution case is that on 26.02.2009 at about 11 a.m. petitioner and other accused trespassed into Relent Reach Cyber College which belonged to the defacto complainant and destroyed furniture and other articles Crl.MC No.5059/2011 2 thereby causing loss to the defacto complainant and that in the course of the incident accused No.1 voluntarily caused hurt to CWs2 and 3 . It is also alleged that remaining accused (including petitioner) pushed down CW2 and took him in a car. 4. Annexures-II and III, judgments are relied on by the learned counsel to say that proceedings against petitioner may be quashed. Sections 40 to 43 of the Evidence Act (for short, “the Act”) deal with relevancy of judgments and in this case, only Section 43 of the Act could be attempted to be made use of. That provision says that judgments/orders or decrees mentioned in Sections 41 and 42 of the Act are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of the Act. In otherwords, Annexures-II and III can be made use of only for the purpose of ascertaining who faced trial and what was the result of the trial. Reasoning made by the learned Magistrate or the evidence discussed therein cannot be used for any purpose. As held in the decision cited supra, even when the co- accused is acquitted, other accused could be convicted if there are good reasons to do so. In otherwords, acquittal of other accused is no reason to bar trial of another accused involved in the case. In Annexure-II, judgment it is stated that PWs 1 and 2 stated that they did not know who the assailants were. In Annexure-III, judgment it is stated that PW1 deposed that he does not want Crl.MC No.5059/2011 3 to proceed with the case. Nothing prevents PWs 1 and 2 from speaking in favour of the prosecution in the trial of case against petitioner and identifying him as one of the assailants. May be petitioner could confront them with their previous statement/deposition if favourable to them and discredit their evidence. In the light of Section 43 of the Act and in view of the Annexures-II and III, judgments, evidence given by the witnesses or the manner of appreciation of that evidence by the learned Magistrate cannot be made use of to claim that case against the petitioner has to be quashed. Hence prayer made by the petitioner cannot be allowed. Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks