IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.MC.No. 3384 of 2006() ------------------------- ST.2348/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONERS/ ACCUSED: ---------------------- 1. JOSEPH, AGED 26 YEARS, ANAKKATTIL VEETTIL, ST.FRANCIS, THYKOODAM, POONITHURA VILLAGE. 2. NISHAD, AGED 26 YEARS, S/O.MOOSA, RESIDING AT KUREEKODIPARAMBIL, OLIKKUZHY, OLD BANK ROAD, VAZHAKALA VILLAGE. BY ADV. SRI.C.T.JESTIN SRI.T.A.SREE KUMAR RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, CITY TRAFFIC POLICE, KOCHI, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.M.C.No.3384 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2008 O R D E R Petitioners have been charge sheeted by the Sub Inspector of Police, Traffic Police Station, Kochi for the offences punishable under Sections 279 and 337 IPC and Sections 185 and 188 of the Motor Vehicles Act, 1988. 2. Annexure-1 report submitted by the police before the jurisdictional Magistrate reveals that the petitioners, who have been arraigned as accused Nos.2 and 3 in the crime, were found travelling in an auto rickshaw at about 6 a.m on July, 15, 2005. The auto rickshaw was admittedly being driven by accused No1. Going by the version in the report, the petitioners who were sitting in the passengers' seat of the auto rickshaw, were allegedly urging the auto rickshaw driver to move on. According to the police, the auto rickshaw driver (accused No.1) who was under the influence of alcohol had hit against a motor bike going in the same direction resulting in injuries to the rider of the bike. 3. I have carefully perused Annexure-1 report of the 2 CRL.M.C.NO.3384/06 police. I do not propose to say anything further about the case other than stating that implication of the petitioners as accused Nos.2 and 3 in the above crime is totally unsustainable. 4. Admittedly the auto rickshaw was being driven by accused No.1. Petitioners were passengers in the auto rickshaw. Even assuming that the petitioners were prompting the auto rickshaw driver to move on, it goes beyond one's comprehension as to how the petitioners could have been implicated in the crime. It is true that the police has added Section 188 of the Motor Vehicles Act in the charge sheet. Under Section 188 of the Act, a person who abets the commission of an offence under Sections 184,185 or 186 shall be punishable with the punishment provided for those offences. According to the police, the accused was under the influence of alcohol. Even assuming a charge under Section 185 may lie against the accused, if it is proved that he was under the influence of alcohol, it cannot be said that the two passengers in the auto rickshaw could be roped in with the aid of Section 188 since admittedly the petitioners were not driving the auto. 3 CRL.M.C.NO.3384/06 In any view of the matter, I do not find any justification in asking the petitioners to face trial in the above case. 5. Therefore, proceedings pending against the petitioners in Crime No. 2637/2005 of the City Traffic Police Station, Kochi are quashed. The Crl.M.C. is allowed. A.K.BASHEER, JUDGE) cl