IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Crl.MC.No. 80 of 2011() ----------------------------------- CC.121/2009 OF JUDICIAL 1ST CLASS MAGISTRATE COURT,CHALAKUDY ... (CRIME NO.27/2000 OF MALA POLICE STATION) ... PETITIONER(S): 2ND ACCUSED: ----------------------------------------------- LIJO,S/O.GEORGE,KODIYAN HOUSE, KURUVILASSERY VILLAGE,KOTTAKKAL DESOM, TRICHUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): COMPLAINANT/STATE: -------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, MALA POLICE STATION. 2. STATE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.80 of 2011 --------------------------------------- Dated this 21st day of January, 2011 ORDER Petitioner is accused No.2 in C.C.No.121 of 2009 of the court of learned Judicial First Class Magistrate-I, Chalakkudy arising from the final report in Crime No.27 of 2000 of Mala Police Station for offences punishable under Secs.353 and 294(b) r/w Sec.34 of the Indian Penal Code. Case is that petitioner and accused Nos.1 and 3 in furtherance of their common intention on 20.08.2000 at about 8.30 p.m used criminal force against PW1, the Sub Inspector while on official duty, used obscene words against him and thereby committed offences as alleged. Since petitioner was not available for whatever reason it be, case against accused Nos.1 and 3 proceeded in C.C.No.786 of 2000, they were tried and acquitted by Annexure-I, judgment. The case against petitioner was split up and refiled as C.C.No.121 of 2009. Petitioner seeks to quash the proceedings against him on the ground that by Annexure-I, judgment the case against accused Nos.1 and 3 ended in acquittal and since petitioner is implicated by virtue of Sec.34 of the Penal Code, in the light of acquittal of accused Nos.1 and 3 the prosecution cannot stand against Crl.M.C.No.80 of 2011 -: 2 :- petitioner. Learned counsel has referred me the deposition of PW1 in C.C.No.786 of 2000 and the relevant portions of Annexure-1, judgment. I have heard learned Public Prosecutor also in the matter. 2. Normally, the absconding accused cannot seek protection of judgment in favour of other accused who faced trial but, this case is to be decided on the facts and circumstances emerging in the case. Annexure-3 is the final report against petitioner and accused Nos.1 and 3. There, it is stated that on 20.08.2000 while the music concern was going on in connection with the Silver Jubilee of St. Teresa's College, Kottackal petitioner and others behaved disorderly and when that was restrained by the police, they used obscene words, obstructed PW1/CW1 from discharging his official duty by catching hold of his arm and thereby committed offences. Annexure-2 is the FIR registered by the police. It is accompanied by a report of PW1, the Sub Inspector. In that report, it is stated that one Sunny (accused No.1) and two others were seen behaving in a disorderly manner causing nuisance to the public and when the police party including PW1 tried to interfere and prevent them from doing so, they were abused in filthy language (the particular Crl.M.C.No.80 of 2011 -: 3 :- words are also stated by the witness). Accused No.1 is said to have caught hold of PW1 on his arm and thus petitioner and other accused obstructed PW1 from discharging his official duty. On going through Annexure-2, FIR and Annexure-3, final report I do not think any specific overt act attributed to the petitioner except that he is sought to be implicated by Sec.34 of the Code. The prosecution has to show that it was in furtherance of the common intention of the accused including the petitioner that overt acts were allegedly done. 3. It is useful to refer to Annexure-1, judgment in C.C.No.786 of 2000 against accused Nos.1 and 3. Learned Magistrate has observed in paragraph 10 of Annexure-1, judgment that in cross examination PWs.1 and 2 deposed that the accused persons (without mentioning who it was) uttered obscene words and that on PW1 going near them accused No.1 caught hold of PW1. Obstruction to official duty is alleged on account of the said act of accused No.1. Regarding that learned Magistrate has found in Annexure-1, judgment that there is no evidence to show that there was any obstruction to the official duty of PW1. If that be so, regarding that offence petitioner cannot be held liable by invoking Sec.34 of the Code. Learned Crl.M.C.No.80 of 2011 -: 4 :- Magistrate also observed that there is no evidence to show that the accused used criminal force to deter PW1 from discharging official duty. It is seen that for lack of evidence accused Nos.1 and 3 have been acquitted of all the charges against them. I stated that petitioner is sought to be ropped in by invoking Sec.34 of the Code. In so far as accused Nos.1 and 3 have been acquitted of all the charges, question of application of Sec.34 of the Code as against the petitioner would not arise. In the circumstances, I am inclined to think that directing petitioner to face the trial would only a waste of time and energy. Hence I am inclined to interfere. Resultantly this criminal miscellaneous case is allowed and Annexure-3, final report in Crime No.27 of 2000 of Mala Police Station and all proceedings in C.C.No.121 of 2009 of the court of learned JFM, Chalakkudy concerning petitioner are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-