The court ruled that the possibility of conviction must be evaluated through trial, as evidence regarding the petitioner's role in an unlawful assembly was yet to be determined.

ORDER

This is a petition filed under Section 482 of the Code of Criminal Procedure by the 11th accused in Crime No. 517/2008 of Bekal police station, now pending as L.P. No. 32/2013 before the Additional Sessions Court – III, Kasaragod. That crime was registered alleging offence under Sections 143 , 147, 148, 153A, 341, 427 and 333 read with 149 of the Indian Penal Code . The incident had happened on 08.12.2018 at 5.30 P.M., at a place by name, Chetukund in Keezhkanam village. The Sub Inspector of Bekal police station and party found two groups engaged in fighting each other. The charge sheet suggests that accused Nos. 1 to 6 and 50 other persons belonging to Hindu community were found standing near the railway track armed with deadly weapons whereas accused Nos. 7 to 13 and 50 others who belong to Muslim community were found standing on the road in the opposite direction in a fighting mood. On getting knowledge that they were hurling stones each other and damaging vehicles of the rival community, police party reached there and tried to pacify and disperse them, but they did not obey the lawful directions of the police party and also hurled stones at the police party, resultantly, one of the members of the police party, i.e., CW9, ARPC 2046 Madhu sustained grievous hurt on his hand and thus the crime was registered and after investigation, charge sheet was laid before the Judicial First Class Magistrate - II, Hosdurg where the case was taken on file and then the case was committed to the Sessions Court, Kasaragod. At first, accused Nos. 1 to 6, 8, 10 and 13 faced trial before the Additional Sessions Court – III, Kasaragod in S.C. No.148/2012. By the judgment dated 17.10.2013, they were acquitted granting benefit of doubt. Thereafter, 9th accused faced trial in S.C. No. 289/2015 before the same court and he was acquitted by Annexure A3 judgment dated 16.08.2019. Now the 11th accused has moved this Court contending that the police had not produced sanction, no independent witnesses had supported the prosecution case, the testimony of the police officials who supported the case were inconsistent and contradictory, identity of the accused itself was questionable and therefore, in the light of Annexure A2 and A3 judgments of the Sessions Court, possibility of reaching a conviction against the petitioner is remote and therefore, he prayed for quashing the proceedings against him.

2. I heard the learned counsel for the petitioner. The learned counsel reiterated the contentions in the Crl.M.C. According to him, this is a case of the year 2008 and material witnesses did not support the prosecution case and thus there is no purpose in putting him for trial.

3. The learned Public Prosecutor has strongly opposed the arguments. According to him, merely for the reason that the other accused were not identified by the witnesses, it cannot be held that petitioner also will not be identified, his role in the commission of the crime can be ascertained only after examining the witnesses.

4. It is true that two rounds of trial have already been over and accused Nos. 1 to 6, 8 to 10 and 13 have been acquitted thereunder. But having regard to the facts of the case, it would not be in the interest of justice to borrow the reasons stated in Annexure A2 and A3 judgments to give a pre-trial exoneration to the petitioner, who is the 11th accused. In Annexure A2, accused Nos. 1 to 6, 8, 10 & 13 had faced trial, PWs 1 to 3 police officials could not render positive evidence. Even though they supported the prosecution case, there was some confusion with regard to identity of one Maneesh, who is the main culprit and the first accused. The prosecution alleged that the stone which hit CW9 Madhu was hurled by Maneesh. At the same time, a material witness had identified another person as Maneesh and that gave rise to cause some aspersion on the identity of the accused. In the second trial, the material witnesses, even in the absence of accused who had gone abroad