IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 Crl.Rev.Pet.No. 166 of 2010() ----------------------------- AGAINST THE ORDER DATED 18/12/2009 IN CRMP.6413/2009 IN CC.303/2001 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): 2ND ACCUSED -------------------------------- 1. SAJEER, AGED 28 YEARS, S/O. MOHAMMAD, KOLODY HOUSE, RASHEED NAGAR, MAMBURAM, THRIKKULAM AMSOM, DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.166 of 2010 ------------------------------- Dated this the 2nd day of February, 2010 ORDER The second accused in a prosecution for the offence punishable under Section 379 read with Section 34 IPC is the revision petitioner. The revision petitioner approached the trial court by filing Crl.M.P.6413/2009 under Section 239 of Cr.P.C. seeking of discharge from the criminal case. 2. Crime No.123/2000 of Feroke Police Station was registered for the offence punishable under Section 379 read with Section 34 IPC., in which the allegation is that on 13.7.2000 at about 6.30 p.m. CW2 had taken the motorcycle bearing No.KL-11/D-8567 owned by CW1 with the permission of CW1 from his house at Cheruvannoor and thus the motorcycle was parked near the Feroke Railway Station gate since CW2 went to the mosque for offering prayer. When he returned after the prayer the motorcycle was not seen there and it was stolen. On the basis of the said crime investigation was undertaken by the police and finally a report was filed implicating the petitioner herein as the second accused and one Illyas as the first accused. Originally the case was taken on file as C.C.No.303/2001 and the 2 first accused was produced in the said case. After the examination of PW8, the first accused disappeared and as he had absconded the case was transferred to the Long Pending Register and on procuring his presence the case was refiled as C.C.529/2007 against the first accused. After the trial against the first accused by judgment dated 20.8.2009 in C.C.529/2007 the trial court acquitted the first accused. 3. It is relevant to note that after the registration of crime the present petitioner who was arrayed as second accused was not arrested and he did not appear before the trial court and therefore, the case against him was splited and refiled as L.P.62/2005. 4. Now the case of the petitioner is that no purpose will be served even if he is directed to appear before the court to face the charge and to undergo the order of trial since the first accused was already acquitted by the trial court. Taking the above contention the revision petitioner has once approached this court by filing Crl.M.C.3208/2009 and this court while disposing the said M.C. relegated the petitioner to approach the trial court and to raise the contentions in support of plea for a discharge. Thus the petitioner approached the trial court by 3 filing C.M.P.6413/2009 in L.P.No.62/2005 with a prayer to discharge him under the grounds mentioned above. As the grounds taken by the petitioner was not acceptable to the learned Magistrate the said petition was dismissed and therefore, the second accused is now before this court. 5. I have heard Mr.Mohammad Salahudheen, learned counsel appearing for the petitioner as well as the learned Public Prosecutor. 6. The learned counsel submitted that the petitioner was implicated in the crime on the basis of the alleged confession statement made by the first accused. It is also pointed out that by an elaborate judgment dated 20.8.2009 in C.C.529/2007 the trial court has already acquitted the first accused and therefore, there is no meaning in directing the petitioner to undergo the ordeal of trial and no purpose will be served, other than waste of time of the trial court. 7. Opposing the prayer of the petitioner and argument advanced by the learned counsel for the petitioner, the learned Public Prosecutor submitted that the factum of acquittal of first accused is not a ground to discharge the petitioner who is the second accused. It is also pointed out by the Public Prosecutor 4 that whatever the grounds taken in the memorandum of revision petition can be raised before the trial court at appropriate time. 8. I have carefully considered the contentions advanced by both the counsel for the petitioner as well as the learned Public Prosecutor and also perused the available records. Admittedly the bike belonging to CW1 was stolen on 13.7.2000 at 6.30 p.m. near from the Feroke railway station gate. The alleged offence was during the year 2000. It is true that during the course of investigation the bike was recovered allegedly on the basis of a confession statement given by the first accused. Still then the trial court acquitted the first accused mainly on the ground that the prosecution miserably failed to establish the connection between the accused with that of the motorcycle which recovered subsequently. Admittedly there was no eye witness to the offence alleged against the accused and there was no link evidence to implicate the accused other than the so-called confession statement alleged to have made by the first accused. The trial court, on the basis of the evidence has specifically found that the so-called confession statement of A1 was not produced and the police officer, allegedly recorded the confession statement of A1 was also not produced and he was 5 not examined. The only material relied on by the police to implicate the second accused is that of the confession statement alleged to have made by the first accused. But in the absence of the confession statement before the court below the first accused was acquitted. If that be so, no liability can be fixed against the petitioner also even if he is compelled to undergo the ordeal of the trial. In the light of the acquittal of the first accused, no liability even be fixed against the remaining only one accused with the aid of Section 34 of IPC. 9. When the trial court is approached by the petitioner by filing a proper petition for discharge, without assigning any satisfactory reasons the trial court simply dismissed the petition stating that the case against the petitioner can be considered only after evidence. No cogent reason was assigned to reject the ground raised by the petitioner in support of his plea for discharge. The specific case raised by the petitioner before the trial court is that there are no materials to proceed with the trial against the petitioner in the light of the order of acquittal passed by the same trial court against the first accused. If there is no material to proceed against the second accused/petitioner, there is no meaning in directing the petitioner to undergo the ordeal of 6 trial. Therefore, according to me, the trial court ought to have allowed the petition filed by the revision petitioner. It is also relevant to note that the defacto complainant is no more and the bike in question was already recovered and given to the appropriate person and the alleged offence was taken place during the year 2000. Under the above circumstances, I am of the view that the petitioner is entitled to get a discharge under Section 239 of Cr.P.C. 10. In the result this revision petition is allowed discharging the petitioner from the criminal case instituted on the basis of the police report in Crime No.16/2001 and presently pending as C.C.1261/2009, before the Judicial First Class Magistrate Court-V, Kozhikode. V.K.Mohanan, Judge cms