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
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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
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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
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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/-