IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.MC.No. 267 of 2011() ---------------------------------- ( CRIME NO.47/2007 OF KASARAGOD POLICE STATION AND C.C.NO.67/2009 OF J.F.C.M-1, KASARAGOD) -------------------------- PETITIONER(S): ----------------------- ASHRAF, S/O.AHAMMED, AYSHA MANZIL, R.D.NAGAR, KUDLU VILLAGE,KASARAGOD DISTRICT BY ADV. SRI.SOJAN MICHEAL RESPONDENT(S): -------------------------- STATE OF KERALA,REP.BY THE 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 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.267 of 2011 --------------------------------------- Dated this 28th day of January, 2011 ORDER Petitioner is the third accused in C.C.No.67 of 2009 of the court of learned Judicial First Class Magistrate, Kasaragod arising from Crime No.47 of 2007 of Kasaragod police Station for offences punishable under Secs.341 and 323 r/w Sec.34 of the Indian Penal Code (for short, "the Code”). Case is that on 16.01.2007 at about 12.15p.m petitioner and others in furtherance of their common intention wrongfully restrained CW1, conductor of bus No.KL-14/7145 and voluntarily caused hurt to him. Prayer in this petition is to quash proceedings against petitioner for the reason that materials on record do not reveal any overt act against petitioner, he is attempted to be ropped in with the aid of Sec.34 of the Code and since the remaining accused are acquitted by Annexure-A6, judgment under Sec.255(i) of the Code of Criminal Procedure. Learned counsel contended that in the above circumstances proceedings against petitioner may be quashed. I have heard learned Public Prosecutor also. Crl.M.C.No.267 of 2011 -: 2 :- 2. So far as alleged involvement of petitioner is concerned, on going through the records what is (allegedly) stated by the occurrence witness is that four students (allegedly including petitioner also) caught hold of collar of shirt worn by CW1 and assaulted him. It is not as if overt acts are attributed only to accused Nos.1, 2 and 4 who are acquitted by Annexure- A6, judgment. It is seen from Annexure-A6, judgment that in spite of coercive steps presence of CWs.1 and 3 could not be procured and hence they could not be examined. It is not as if prosecution cannot examine those witnesses and prove its case against petitioner. In the circumstances, on the grounds pleaded by petitioner proceedings against him cannot be quashed. Resultantly this criminal miscellaneous case fails. It is dismissed without prejudice to the right of petitioner to take appropriate defence in the course of trial. (THOMAS P JOSEPH, JUDGE) Sbna/-