Prosecution cannot continue if prior acquittal and serious procedural deficiencies undermine the case.

ORDER

The petitioner is the 4^th accused in Crime No. 205/2017 registered at the Kasaba Police Station for offences under Sections 143 , 147, 148, 353, read with 149 of the Indian Penal Code and Section 3 (2)(e) of the Prevention of Damage to Public Property Act , 1984. The crime was registered on the allegation that, while CW1 and CW4 were performing Police aid post duty on 26.02.2017, at about 04.20 am they saw the 1^st accused urinating publicly in the Mofussil Bus Stand bay. Thereupon, CW1 and CW4 restrained the 1^st accused. Infuriated with this, the accused then formed themselves into an unlawful assembly and attacked CW1 and CW4 with a stone and obstructed the policemen from performing their official duty. It is also alleged that the accused criminally trespassed into the Police aid post and damaged the glass door, resulting in the Government sustaining a loss of Rs.1776/-.

2. On filing of Final Report, the case was taken on the files of the Judicial First Class Magistrate Court-III, Kozhikode as CC No. 469/2017. All accused, except the petitioner, faced trial in that case and were acquitted by Annexure 6 judgment. The petitioner is seeking to get the proceedings against him quashed on the strength of the judgment of acquittal rendered in the case of his co-

accused.

3. Learned counsel for the petitioner contended that, by reason of the conclusive findings in Annexure 6 judgment, the substratum of the prosecution case is lost and no purpose will be served by compelling the petitioner to face trial. In support of this argument, reference is made to the findings in paragraph nos.16 and 17 of Annexure 6 judgment.

4. Heard the learned Public Prosecutor also.

5. A perusal of Annexure 6 judgment reveals that the prosecution had failed to explain manner in which the accused were identified. Their arrest was also found to be irregular since no independent witness had attested the arrest memo. The trial court also noticed that, inspite of there being a CCTV at the site, the CCTV footages were not seized or produced. The staff in the cloak room at the bus stand, who had witnessed the incident were also not examined.

6. As rightly contended by the learned counsel, the above fatal infirmities cannot be cured, even if the petitioner is made to face trial. In that view of the matter, continuation of the Prosecution against the petitioner will be an exercise in futility.

For the aforementioned reasons, the Crl.MC is allowed.