IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 Crl.MC.No. 136 of 2011() ----------------------------- (S.C.NO.859/2003 ADDL, SESSIONS COURT (FAST TRACK-1) THIRUVANANTHAPURAM AS LP 24/2008) ....... PETITIONER(S): 6TH ACCUSED ------------------------------------ BASHEER, S/O.BADARUDEEN, TC 46/846, MANIKYAVILAKAM, MANATHITTA MURI, MUTTATHARA VILLAGE, NOW RESIDING AT MUHAMMED MANZIL, TC 46/925, MANIKKAVILAKOM, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): --------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.136 of 2011 --------------------------------------- Dated this 25th day of January, 2011 ORDER Petitioner is accused No.6 in S.C.No.859 of 2003 of the court of learned Additional Sessions Judge (Adhoc-I), Thiruvananthapuram which is pending as L.P.No.24 of 2008 of that court. Petitioner requested this court to quash the proceedings against him in view of Annexure-A2, judgment in S.C.No.859 of 2003 acquitting some of the other accused under Sec.232 of the Code of Criminal Procedure (for short, "the Code”). Case is that on 19.07.1992 at about 8.15 a.m at Poonthura there was a riot involving ISS men belonging to Muslim community and RSS men belonging to the Hindu community in which houses of CWs.1 to 3 were set fire to by an unlawful assembly of which petitioner and others were members. Annexure-A1 is the final report where petitioner and other accused are said to have committed offences punishable under Secs.143, 147, 148, 395, 436, 427 and 153(A) r/w Sec.149 of the Indian Penal Code. Learned counsel contends that no overt act has been attributed to the petitioner and that a reading of Annexure-A2, judgment would show that the matter has been Crl.M.C.No. 136 of 2011 -: 2 :- settled between the parties and hence the prosecution witnesses did not support the prosecution. It is also contended that since petitioner was staying in a rented house, he was not served with summons and hence could not take part in the trial of S.C.No.859 of 2003. 2. I have gone through Annexure-A2, judgment in S.C.No.859 of 2003. It is true that those accused who faced trial were acquitted under Sec.232 of the Code but it is seen that PWs.1, 5 and 6 examined to prove the incident did not support the prosecution. That the case against some of the accused ended in an acquittal under Sec.232 of the Code is not by itself a ground to quash proceedings against petitioner. There is nothing which prevents the prosecution witnesses from giving evidence against petitioner. Whether that evidence will be accepted in view of their earlier deposition is an altogether different matter. Serious allegations are made by the prosecution that petitioner was a member of the unlawful assembly which indulged in rioting armed with deadly weapons, indulged in communal violence, arson, looting etc. Having regard to the facts and circumstances of the case I am not persuaded to think that this is a case where proceedings against petitioner has to be quashed for the reason Crl.M.C.No. 136 of 2011 -: 3 :- that some of the other accused were acquitted under Sec.232 of the Code. Petitioner has to face the trial. Hence, request to quash the proceedings cannot be allowed. Resultantly this petition is dismissed without prejudice to whatever plea or defence that the petitioner may take before the learned Additional Sessions Judge in the trial of the case. (THOMAS P JOSEPH, JUDGE) Sbna/-