IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.MC.No. 1498 of 2011() ------------------------- AGAINST THE ORDER IN LPC 39/2010 IN SC.361/2010 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), KASARAGODE .................... PETITIONER(S): DEFACTO COMPLAINANT AND PWs: ------------------------------------------------------------------------------ 1. RAJEEV SHETTY,S/O.MARAPPA SHETTY, AGED 49 YEARS, ANAYALAGUTHU HOUSE, KARUVAPPADY, BANDWAL TALUK,KARNATAKA. 2. GIREESH, S/O.SHYAM BHAT, MIYAPADAV HOUSE,BANTWAL TALUK, KASARAGOD. 3. RADHAKRISHNA,S/O.NAYARANA SHETTY, KULABAYAL HOUSE,CHERUGOLI, MANGALPPADY GRAMAM, KASARAGODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ACCUSED/STATE: ------------------------------------------------------- 1. ASHRAF @ MUHAMMED ASHRAF, AGED 27 YEARS, S/O.MOIDEEN KUNHI, RUKHIYA MANZIL, BEHIND KUNJATHUR SWAGATH HOTEL, KUNJATHUR, MANJESHWAR - 671 121. 2. STATION HOUSE OFFICER, MANJESHWAR - 671 121. 3. STATE,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.CIBI THOMAS R2 BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1498 of 2011 -------------------------------------- Dated this the 3rd day of June, 2011. ORDER Petitioners are the defacto complainant, injured and a witness in Crime No.425 of 2005 of Manjeswaram Police Station and L.P.C.No.39 of 2010 in S.C.No.361 of 2010 of the court of learned Additional Sessions Judge (Adhoc- III), Kasaragod. The Manjeswaram Police registered that case for offences punishable under Sections 308 and 427 read with Section 149 of the Indian Penal Code (for short, “the IPC”). Prosecution case is that on the day of incident the first accused and first respondent on account of enmity to the first petitioner who was driving a bus at the relevant time pelted stones at him, it hit the second petitioner and caused damage to the bus. First accused was tried in S.C.No.226 of 2007 and since all material witnesses turned against the prosecution, he was acquitted under Section 232 of the Code of Criminal Procedure by Annexure-I, judgment. Petitioners say that they do not intent to proceed against the first respondent. Learned counsel submitted that first petitioner is the defacto complainant, second petitioner is the injured passenger and third petitioner is conductor of the bus examined as PW3 in S.C.No.226 of 2007. It is also pointed out that charge under Section 308 of the IPC is incorporated on the premises that had the stone hit the first petitioner/driver, he would have lost control, the bus would have turned down and that would have resulted in casualties. Crl.MC No.1498/2011 2 2. The defacto complainant and the injured do not want to proceed against the first respondent. While examined in S.C.No.226 of 2007 they spoke against the prosecution. In that situation proceeding with the case against first respondent is of no use. Hence I am inclined to interfere. Resultantly this Criminal Miscellaneous Case is allowed. Proceeding against first respondent/second accused in L.P.C.No.39 of 2010 in S.C.No.361 of 2010 of the court of learned Additional Sessions Judge (Adhoc-III), Kasaragod are quashed. THOMAS P.JOSEPH, Judge. cks