IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 Crl.MC.No. 1633 of 2011() ------------------------- SC.156/2006 of ASSISTANT SESSIONS COURT, NEDUMANGAD CP.10/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... (CRIME NO.120/91 OF VITHURA POLICE STATION) .... PETITIONER(S): 8TH ACCUSED: ------------------------------------------------ ABDUL RAHIM, S/O.ABDUL KHADER, PARAPURAM JADA MANZIL, POTTY KUNNU, KOTTAKKAKOM MURI, VITHURA VILLAGE. BY ADV. SRI.G.SUDHEER RESPONDENT(S): --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1633/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF CHARGE SHEET IN CRIME NO.120/91 OF VITHURA POLICE STATION. ANNEX.B: COPY OF WITHDRAWAL PETITION FILED BY THE PROSECUTOR. ANNEX.C: COPY OF THE ORDER IN SC.NO.156/96 ON THE FILE OF ASST. SESSIONS COURT, NEYYATTINKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1633 of 2011 -------------------------------------- Dated this the 28th day of June, 2011. ORDER Petitioner is the eight accused in Crime No.120 of 1991 of Vithura Police Station and C.P.No.10 of 1996 of the court of learned Judicial First Class Magistrate-II, Nedumangad for offences punishable under Sections 143, 147, 148, 447, 114 and 307 read with Section 149 of the Indian Penal Code and Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984 (for short, “the Act”). Prosecution case is that on December 9, 1991 at about 11.30 a.m. petitioner and other accused with intent to cause death of the Police Officials and in furtherance of their common object formed unlawful assembly armed with deadly weapons, trespassed into the compound of Vithura Police Station and committed offences as alleged. Petitioner seeks the benefit of Annexure-C, order dated November 4, 1997 in S.C.No.156 of 1996 of the court of learned Assistant Sessions Judge, Nedumangad discharging some of the accused under Section 227 of the Code of Criminal Procedure (for short, “the Code”) pursuant to that the Law Officer withdrawing from prosecution with the consent of the State Government. Learned counsel has submitted that petitioner is alleged to have been a member of the unlawful assembly but not overt act is attributed to him and hence the benefit of Annexure-C, order may be given to the petitioner also. I have heard learned Public Prosecutor also. Crl.MC No.1633/2011 2 2. Annexure-B is the copy of the application for withdrawal filed by the Law Officer under Section 321 of the Code. In paragraph 1 of the petition it is stated that on a careful perusal of the case diary and on studying the facts of the case the Law Officer was of the opinion that the accused in the case cannot be convicted as the evidence in the case was insufficient for such conviction and in the circumstances, he wished to withdraw from the prosecution of the accused. It is also stated that the Government of Kerala had no objection in such withdrawal from prosecution. Annexure-C, order shows that the said stand of the Law Officer was accepted by the learned Assistant Sessions Judge, Nedumangad and accordingly such of the accused who faced trial were discharged under Section 227 of the Code. 3. Accused 14 and 16 are no more. Petitioner and three others were not available for trial. There is no reason why the stand of the Law Officer regarding no possibility of evidence being adduced by the prosecution be not made applicable to the petitioner also against whom there is no allegation of overt act. I am inclined to give protection of Annexure-C, order to the petitioner as well. Crl.MC No.1633/2011 3 Resultantly this Criminal Miscellaneous Case is allowed. Proceeding against petitioner in C.P.No.10 of 1996 of the court of learned Judicial First Class Magistrate-II, Nedumangad (eighth accused in Crime No. 120 of 1991 of Vithura Police Station) is quashed. THOMAS P.JOSEPH, Judge. cks