IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.MC.No. 3405 of 2009() ------------------------- LP.25/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... PETITIONER(S): ACCUSED ---------------------- K.ABDUL GAFOOR ,S/O.CHEKKUNNU KOOTHRADAN HOUSE, CHOKKAD, KALIKAVU, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S)/STATE: --------------- THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE KALIKAVU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM KOCHI-31. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3405 OF 2009 ------------------------------------------ Dated 22nd October 2009 O R D E R Petitioner was the sixth accused in C.C.127/1991 on the file of Judicial First Class Magistrate-I, Manjeri. As the petitioner was absconding, case as against him as well as accused 2,4, and 9 were split up and others were tried and under Annexure-B judgment dated 6/11/1998 those accused were acquitted. Subsequently when presence of ninth accused was procured, he was tried in C.C.274/2005. By Annexure-C judgment, he was also acquitted. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings as against him contending that in the light of the order of acquittal of co-accused and when the only case against petitioner is that he was one of the members of the unlawful assembly, there is no likelihood of a conviction and in such circumstances, it is not in the interest of justice to continue the prosecution. Crmc 3405/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 23/12/1990 at about 9 p.m, 12 accused formed themselves into an unlawful assembly with the common object of trespassing into the house of de facto complainant, who was examined in the earlier case as PW1 and armed with weapons trespassed into the house and beat him and caused hurt and thereby committed the offences under Sections 143, 147, 148, 447 and 324 read with Section 149 of Indian Penal Code. Annexure-B judgment shows that though de facto complainant, the injured and inmates of the house supported the prosecution case, learned Magistrate found that they had deviated from the earlier F.I statement as well as statement recorded under Section 161 of Code of Criminal Procedure and their evidence was contradicted by the evidence of independent witness. Annexure-C judgment shows that when ninth accused was later tried, the very same witnesses who earlier supported the prosecution case turned hostile, consequent to the settlement of the disputes. In such circumstances, it is clear that even if, petitioner is to be tried, Crmc 3405/09 3 there is no likelihood of a successful prosecution. When prosecution case is that petitioner was only one of the members of unlawful assembly and the other alleged members of the unlawful assembly were already acquitted, there cannot be a successful prosecution. Even if petitioner is to be tried, it would only result in unnecessary waste of valuable time of the court. In such circumstances, petition is allowed. L.P.25/1999 of Judicial First Class Magistrate-I, Manjeri as against petitioner is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.