IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 Crl.MC.No. 1825 of 2011() ------------------------------------- SC.NO. 987/2007 of ADDL.DIST & SESSIONS COURT (ADHOC) II, KOLLAM CRIME NO.99/2004 OF ANCHALUMMOODU POLICE STATION .................... PETITIONER/6TH ACCUSED ---------------------------------------- SANTHOSH,S/O.PADMANABHAN, SANTHOSH BHAVANAM,THEKKEVEEDU, CHITTAYAM CHERRY, PANAYAM VILLAGE,KOLLAM BY ADVS. SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.T.S.ANURAJ SRI.SANJAY SHENOI.P. RESPONDENT/ COMPLAINANT --------------------------------------------- STATE OF KERALA, REP.BY THE S.I.OF POLICE,ANCHALUMMOODU KOLLAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.1825/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE FIR WITHT EH FIS IN CRIME NO.99/04 OF ANCHALUMMOODU POLICE STATION DATED 21/04/2004. ANNEX.2: COPY OF THE WOUND CERTIFICATE IN RESPECT OF USHA DATED 21/4/04 ANNEX.3: COPY OF THE CHARGE SHEET IN CRIME NO.99/04 OF ANCHALUMMOODU POLICE STATION. ANNEX.4: COPY OF THE JUDGMENT IN S.C.NO.987/07 DATED 30/09/2010 PASSED BY THE ADDL.SESSIONS COURT(ADHOC) II, KOLLAM. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1825 of 2011 ==================================== Dated this the 22nd day of June, 2011 O R D E R Petitioner is the sixth accused in C.P. No.26 of 2007 and L.P. No.493 of 2007 of the court of learned Judicial First Class Magistrate- I, Kollam for offences punishable under Sections 143, 147, 148, 323 450, 427, 324 and 307 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. Case is that on 21.04.2004 petitioner and other accused in prosecution of their common object formed unlawful assembly, committed rioting armed with deadly weapons like iron rod, sword, etc., trespassed into the house of C.W.1 and voluntarily caused hurt/attempted to cause his death. Petitioner, banking upon acquittal of some of the accused as per Annexure A4, judgment requests this Court to quash proceedings against him. Learned counsel submitted that only overt act attributed to the petitioner is assault on C.W1. Copy of wound certificate of C.W.1 does not show that he suffered any injury. It is submitted that all other overt acts are attributed to accused 1 to 5 and that motive of the incident is attributed only to the third accused. It is also contended that even the 5th accused who stands on a similar footing was acquitted by the learned Sessions Judge. I have heard learned Public CRL.M.C. No.1825 of 2011 -: 2 :- Prosecutor also. 2. Petitioner was not available for trial during the relevant time. Question as to whether benefit of acquittal of accused 1 to 5 as per Annexure-4, judgment should be given to the petitioner depends on the facts of the case. It is seen from Annexure-4, judgment that P.Ws 1 to 5 were examined by the prosecution, P.W.1 stated the 'accused who faced trial' did not commit any offence and P.W.2, wife of P.W.1 did not support the prosecution. C.Ws3 and 4 who are injured were not examined as that they were not available. Allegation against petitioner apart from that he was a member of the unlawful assembly is that he assaulted C.Ws3 and 4. Those witnesses were not examined in the case. In the circumstances even if it is assumed that other allegations against petitioner may not stand in the light of Annexure- A4, question whether he assaulted C.Ws.3 and 4 is to be examined. I am not persuaded to think that having regard to the nature of the offences which involved Sec.27 of the Arms Act also this Court should interfere and quash proceedings. 3. It is submitted by learned counsel that a non-bailable warrant is pending against petitioner. Petitioner seeks time to appear before the learned Magistrate for regular bail/recall warrant. Having regard to the circumstances stated I am inclined to grant some time to the petitioner. Resultantly, Criminal Miscellaneous Case is disposed of CRL.M.C. No.1825 of 2011 -: 3 :- in the following lines: (i) Petitioner is granted one month's time from this day to appear before learned Magistrate to seek regular bail/recall warrant. (ii) Non-bailable warrant issued to the petitioner will stand in abeyance for a period of one month from this day or till he appears before the learned Magistrate whichever is earlier. (iii) Application for bail/recall of warrant if preferred by petitioner shall be disposed of by the learned Magistrate as early as possible having regard to the facts and circumstances of the case including that custodial interrogation of petitioner may not be required. Learned Magistrate is directed to complete the committal proceeding and the learned Sessions Judge who has to try the case is directed to dispose of the case expeditiously. THOMAS P. JOSEPH, JUDGE. vsv