IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 Crl.MC.No. 1916 of 2010() -------------------------------------- (CMP.NO.19/10 IN SC 592/04 OF ADDL.SESSIONS COURT, FAST TRACK COURT I, THIRUVANANTHAPURAM) ..... PETITIONER(S): ------------------------ KRISHNAN ASARI, S/O. PARAMESWARAN ASARI, AGED 72 YEARS, RESIDING AT KAMALA BHAVAN, VELLAR, KOVALAM.P.O,VENGANOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.V.AJAKUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, VIZHINJAM POLICE STATION, VIZHINJAM, THIRUVANANTHAPURAM. 2. GIRISHKUMAR, NIKITHA BHAVAN, VENGANOOR VILLAGE, MUTTAKKADU DESOM,THIRUVANANTHAPURAM. 3. SURESHKUMAR @ BALU, S/O. VISWAMBHARAN, RESIDING AT NELLIVILA HOUSE, VENGANOOR VILLAGE, MUTTAKKADU DESOM,THIRUVANANTHAPURAM. 4. ANILKUMAR @ ANI, S/O. KESAVAN, RESIDING AT -DO- 5. SOMAN, S/O. BHARGAVAN, RESIDING AT V.P II/17, POOVARSHUVILA VEEDU,VENGANOOR VILLAGE, MUTTAKKADU DESOM, THIRUVANANTHAPURAM. 6. VIJAYAN @ KOZHIYALA, S/O. KUNJAN, NELLIVILA VEEDU, VENGANOOR VILLAGE, MUTTAKKADU DESOM, THIRUVANANTHAPURAM. Kss ..2/- ..2.... CRMC.NO.1916/2010 7. ASOKAN, S/O. APPU, RESIDING AT THOTTINKARA HOUSE, THIRUVALLAM VILLAGE, PACHALOOR, VELLAR, THIRUVANANTHAPURAM. 8. REJITH KUMAR @ REJI, RESIDING AT SITHARA HOUSE, VENGANOOR VILLAGE, MUTTAKKADU DESOM, THIRUVANANTHAPURAM 9. SUNATHAN @ AYOLA, S/O. ASOKAN, RESIDING AT NELLIVILA HOUSE, VENGANOOR VILLAGE, MUTTAKKADU DESOM, THIRUVANANTHAPURAM. 10. SIVAKUMAR, S/O. PANKAJAKSHAN, RESIDING AT -DO- R1 BY PUBLIC PROSECUTOR SRI. M.S. BREEZ THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/11/2010 ALONG WITH CRRP.NO.1221OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C.No.1916 of 2010 & Crl.R.P.No.1221 of 2010 * * * * * * * * * * * * * * * * * * * * * * Dated: 4th day of November, 2010 ORDER Crl.M.C.No.1916/2010 is filed by the de facto complainant in Crime No.5/2000 of Kovalam Police Station registered for offences punichable under Sections 120(B) and 436 I.P.C. Crl.R.P.No.1221/2010 is filed by accused Nos. 5 and 7 in the said crime. 2. The case of the prosecution is that due to prior enimity towards the de facto complainant and his family members the nine accused persons in furtherance of the criminal conspiracy hatched by them set fire to the house of the de facto complainant by name 'Kamala Bhavan' at Vellar, Kovalam in Venganoor Village, Thiruvananthapuram and as a result of the same, household articles worth Rs.1,50,000/- were gutted by fire. 3. The case is presently pending before the Additional Sessions Court, Fast Track-I, Thiruvananthapuram as S.C.No.592/2004. It was consequent on the embarrassment or unwillingness expressed by three of the Additional Public Prosecutors placed in-charge of the said Court to conduct the prosecution, presumably for the reason that the accused who Crl.M.C.No.1916 of 2010 & Crl.R.P.No.1221 of 2010 2 allegedly belong to the Communist Part of India (Marxist) were personally known to them, that the de facto complaiannt was compelled to file Crl.M.C.No.1916/2010. Initially, consequent on the three Additional Public Prosecutors expressing unwillingness to conduct the prosecution, the de facto complainant approached the Government for the appointment of Special Public Prosecutor under Section 24(8) Cr.P.C. According to him, on the influence of the accused persons the said application was rejected by the Government necessitating the peittioner to file an application before the trial court as C.M.P.No.19/2009 for permitting him to engage a private counsel for conducting the prosecution under Section 302 Cr.P.C. In the meanwhile, according to the de facto complainant, at the instance of the accused persons, the Government finally gave permission to the Public Prosecutor to withdraw from the prosecution of the above Sessions Case with the consent of the court under Section 321 Cr.P.C. Thereafter, Advocate K.S.Santhosh, Additional Public Prosecutor filed C.M.P.No.20/2009 before the trial Court seeking consent to withdraw the prosecution. Opposing C.M.P.No.20/2009 one Neyyattinkara P.Nagaraj filed C.M.P.No.498/2010 requesting the Court below not to grant permission to withdraw the prosecution filed by the Additional Public Prosecutior. The aforesaid three Crl.M.C.No.1916 of 2010 & Crl.R.P.No.1221 of 2010 3 applications namely C.M.P.Nos.19 and 20 of 2009 and C.M.P.No.498/2010 were heard and disposed of by the common impugned order dated 10.3.2010. The learned Additional Sessions Judge refused to grant consent to the Additional Public Prosecutor to withdraw the prosecution and accordingly dismissed as C.M.P.No.20/2009. C.M.P.No.19/2009 filed by the de facto complainant was not allowed under Section 302(1) Cr.P.C, but instead it was allowed only under Section 301(2) Cr.P.C permitting the private counsel engaged by the de facto complainant to assist the Public Prosecutor and with the permission of the Court to submit written argument notes. Since C.M.P.No.20/2009 was dismissed, C.M.P.No.498/2010 filed by the third party had become infructuous. 4. Crl.R.P.No.1221/2010 is filed by two of the accused persons challenging that part of the impugned common order as per which the court below permitted the de facto complainant to engage a private lawyer to assist the prosecution. 5. Eventhough, these Criminal M.Cs and Criminal R.Ps were argued at length, before the final orders could be passed in these matters, the Additional Director General of Prosecution has now filed a statement dated 03.11.2010 to the effect that an Additional Public Prosecutor by name Sri.A.Abdul Hakkim has Crl.M.C.No.1916 of 2010 & Crl.R.P.No.1221 of 2010 4 been placed in-charge of the Additional Sessions Court, Fast Track-I, Thiruvananthapuram and that he has expressed his willingness to conduct the prosecutioon in Sessions Case No.592/2004. The above gesture on the part of the Additional Director General of Prosecution, though belatedly has come as a great relief to the parties as well as to this Court since a Sessions Case which has been pending trial for more than six years will now find a logical conclusion soon. In the light of these supervening circumstances, it may not be necessary for this court to go into the merits of the contentions raised by either side. Suffice it to say that Sri.A.Abdul Hakkim, who is in-charge of the court below shall conduct the prosecution and the private lawyer permitted to be engaged by the de facto complainant shall act under Section 301(2) Cr.P.C assisting the said Additional Public Prosecutor. No further directions are warranted in these cases which are accordingly disposed of as above. V. RAMKUMAR,(JUDGE) dmb