IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 23RD MAY 2011 / 2ND JYAIHTA 1933 CRL.MC.NO. 1179 OF 2011() --------------------------------------- SC.473/2005 OF ASSISTANT SESSIONS JUDGE, HOSDRUG .................... PETITIONER(S): ACCUSED NO.15 ------------------------------------------------ MUKUNDAN N., AGED 32 YEARS, S/O.NARAYANAN, NELLIYADUKKAN HOUSE, P.O.PANYAL, PANAYAL VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT(S): COMPLAINANT -------------------------------------------------- STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1179 of 2011 ==================================== Dated this the 23rd day of May, 2011 O R D E R Petitioner is the 15th accused in Crime No.301 of 2002 of Bakel Police Station for offences punishable under Sections 143, 147, 148, 324, 326 and 309 read with 149 of the Indian Penal Code. Case is that on 22.08.2002 at about 9.00 p.m petitioner and others attacked C.W.1 and voluntarily caused hurt/grievous hurt and attempted to cause his death. Learned Public Prosecutor filed Annexure-AIV, petition before the learned Assistant Sessions Judge, Hosdurg in S.C. No.473 of 2005 and S.C.No.733 of 2005 (in which petitioner is facing trial) for withdrawal from prosecution under Sec.321 of the Code of Criminal Procedure (for short, “the Code”). That application was disposed of by the learned Assistant Sessions Judge as per Annexure-AV, order in respect of 14 accused involved in S.C. No.473 of 2005 but specifically directing that case against petitioner and accused 12 and 13 is split up and refiled as S.C. No.733 of 2005 and that separate petitions have to be filed by the learned Public Prosecutor in S.C. No.733 of 2005. Case against petitioner was included in the long pending register as L.P. No.112 CRL.M.C. No.1179 of 2011 -: 2 :- of 2006 of the court of learned Judicial First Class Magistrate-II, Hosdurg. Petitioner seeks benefit of Annexure-AV, order in this petition. Learned counsel submitted that Annexure-AIV, application was preferred in S.C. No.473 of 2005 and S.C. No.733 of 2005 and since the Government have granted sanction to withdraw from prosecution that benefit should be given to the petitioner also. 2. I am afraid, I am unable to accept that argument. Under Section 321 of the Code, withdrawal from the case can be against any accused. It need not necessarily be against all accused involved. It is true that Annexure-AIV, application is filed in S.C. No.473 of 205 (involving petitioner also). Annexure-AV, order is specific that it is in respect of the accused in S.C. No.473 of 2005 and regarding accused (including petitioner) in S.C. No.733 of 2005, learned Public Prosecutor has to file separate applications for withdrawal. It is clear that leaned Assistant Sessions Judge has not granted permission to withdraw prosecution against petitioner who is involved in S.C. No.473 of 2005. In the circumstances prayer for granting benefit of Annexure-AV, order to the petitioner cannot be allowed. Proper course open is for the learned Public Prosecutor to comply with CRL.M.C. No.1179 of 2011 -: 3 :- the direction in Annexure-AV, order if circumstances warranted that. With the above observation, this Criminal Miscellaneous Case is closed. THOMAS P. JOSEPH, JUDGE. vsv