High Court Kerala High Court

Lijo vs Sub Inspector Of Police on 21 January, 2011

Kerala High Court
Lijo vs Sub Inspector Of Police on 21 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 80 of 2011()


1. LIJO,S/O.GEORGE,KODIYAN HOUSE,
                      ...  Petitioner

                        Vs



1. SUB INSPECTOR OF POLICE,MALA POLICE
                       ...       Respondent

2. STATE REP;BY PUBLIC PROSECUTOR,

                For Petitioner  :SRI.CIBI THOMAS

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :21/01/2011

 O R D E R
                  THOMAS P JOSEPH, J.

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                     Crl.M.C.No.80 of 2011

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              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/-