IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.MC.No. 2945 of 2010() ------------------------- (CP.108/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA , ARISING OUT OF CRIME NO.375/2008 OF KALLAMBALM POLICE STATION) .................... PETITIONER/ACCUSED NO.2 --------------------------- NAZAR, S/O.ADAM PILLAI, AGED 49 YEARS, 'VAYALIL HOUSE', ONNAM PALAM SAMAD ROAD, VETTOOR VILLAGE, VILABHAGAM DESOM, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.K.H.SAKIR. SRI.P.BANI RESPONDENT/COMPLAINANT -------------------------- THE STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, KALLAMBALAM POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2945 of 2010 -------------------------- ORDER Petitioner, the second accused in C.P.No. 108/2009 on the file of Judicial First Class Magistrate's Court, Varkala, taken cognizance for the offences under Sections 353 and 308 read with Section 34 of Indian Penal Code, filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken contenting that continuation of the proceedings as against him is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 24.12.2008 at about 7 p.m., first accused was driving Maruti Omni Van KL-16/D-6261 along Kollam-Thiruvananthapuram National Highway and when the vehicle reached near Kallambalam Junction, as instructed by CW5, Sub Inspector of Police, Kallambalam Police Station, CRMC 2945/10 2 CW1, the Police Constable, gave signal to stop the vehicle. But, first accused, discarding the signal, with the knowledge that if the vehicle hits on CW1 it would cause his death, hit the vehicle on CW1 and drove away causing obstruction to the official duty of CWs 1 and 5 and thereby committed the offences. 4. It is alleged that other accused, including the second accused, who is the petitioner, were passengers of the Omni Van. As rightly pointed out by the learned counsel appearing for the petitioner, even if the prosecution case as such is accepted, it will not make out a case as against the petitioner. Petitioner was only a passenger of the van which was driven by the first accused. The incident occurred while the van was proceeding from Kollam to Thiruvananthapuram and reached near Kallambalam Junction. As instructed by the Sub Inspector, the Police Constable gave signal to stop the vehicle and the driver of the vehicle, without CRMC 2945/10 3 stopping, hit on the police constable and drove away. The passengers of the van cannot have any part in the act done by the first accused. In such circumstances, even if petitioner is tried, there is no likelihood of a successful prosecution and it would result only in unnecessary waste of valuable time of the court. Petition is allowed. The cognizance taken on Annexure-A2 final report as against the petitioner/ second accused is quashed. It is made clear that the case as against the other accused could be proceeded. 13th September, 2010 (M.Sasidharan Nambiar, Judge) tkv