IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.MC.No. 2355 of 2009() ----------------------------------- CC.148/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONERS/ACCUSED ----------------------------------- RAHUL, RESIDING AT PADANADATHIL VEEDU, CHERIYELA, ALUMMOODU P.O., KOLLAM DISTRICT. BY ADV. MR.JOHNSON GOMEZ RESPONDENT(S): ------------------------- THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, THROUGH THE SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION,KOLLAM. BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2355 of 2009 -------------------------- ORDER Petitioner is the accused in C.C.No.185/2008 on the file of Chief Judicial Magistrate's Court, Kollam. Case of the petitioner is that accused 2, 4, 6 and 7 were tried by the Magistrate in C.C.No. 148/2005, after splitting up the case as against absconding accused 1, 3 and 5 and under Annexure-D judgment, accused 2, 4, 6 and 7 were acquitted and in the light of the order of acquittal, even if petitioner is to be tried, there is no likelihood of a conviction and therefore, it is not in the interest of justice to continue the proceedings as against the petitioner. It is also contended that petitioner is not involved in the incident at all and due to a mistaken identity, petitioner was roped in and he is not the accused Rahul involved and hence, the case is to be quashed. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel pointed out that when the co- accused were tried and acquitted in C.C.No.148/2005, in CRMC 2355/09 2 spite of coercive steps, CW2, the injured could not be examined and CWs 1 and 3, the other injured, turned hostile and CW1 even disowned his F.I. Statement and in the light of the evidence, Public Prosecutor did not examine the other witnesses and in such circumstances, even if petitioner is to be tried, there is no chance of a conviction. Learned counsel also argued that petitioner was not involved in the incident at all and he was implicated due to a mistaken identity and in such circumstances, the case is to be quashed. 4. Learned Public Prosecutor pointed out that fact that co-accused were acquitted by itself is not a ground to quash the case as against the petitioner. It was also pointed out that if CW2 could be made available for trial and he is examined and if he supports the prosecution case, fate of the case need not be as in Annexure-D judgment and therefore, based on Annexure-D judgment, the case cannot be quashed. Learned Public prosecutor also pointed out that in this petition the question of identity of the petitioner cannot be decided, as it is a matter for evidence. 5. Learned counsel appearing for the petitioner expressed apprehension that though, on the allegations CRMC 2355/09 3 provisions of Kerala Prohibition of Ragging Act are not attracted, in view of the offences under Sections 3 and 4 shown in the charge sheet, even if petitioner is to surrender, he may not be released on bail and hence, this petition may not be dismissed granting liberty to the petitioner to seek discharge before the Magistrate. 6. As rightly pointed out by the learned Public Prosecutor, based on Annexure-D order of acquittal, case as against the petitioner cannot be quashed. Prosecution case is that injury was caused to CW2 also, who was not examined when the co-accused were tried in C.C.No.148/2005 as in spite of coercive steps, presence of CW2 could not be procured at that time. If CW2 is to be examined and he is to support the prosecution case, fate of the case need not necessarily be as under Annexure-D judgment. Therefore, based on the order of acquittal, the case as against the petitioner cannot be quashed. 7. Similarly, the question of identity of the petitioner and whether it was the petitioner himself or some other Rahul cannot be decided in this petition under Section 482 of Code of Criminal Procedure, as it is a matter for evidence. Petitioner is entitled to CRMC 2355/09 4 raise all the questions before the Magistrate. If the case of the petitioner is that there is no material to connect him with the offence alleged, he is entitled to raise that contention before the Magistrate before framing the charge against him. Petitioner is also entitled to file an application for discharge under Section 239 of Code of Criminal Procedure and raise all the contentions before the Magistrate. 8. Though learned counsel appearing for the petitioner raised an apprehension that in view of Sections 3 and 4 of Kerala Prohibition of Ragging Act, learned Magistrate may not be inclined to release the petitioner on bail, I find no force in the submission. In the charge, there is no allegation that accused committed ragging on anybody. On the other hand, the case was only that when CWs 1 to 3 had questioned the accused, the incident occurred. If that be so, especially in the light of Annexure-D judgment, I find no reason to believe that Magistrate will not release the petitioner on bail. Petition is disposed. 10th August, 2009 (M.Sasidharan Nambiar, Judge) tkv