JUDGMENT:---The petition has been filed by the original accused No. 2 of a crime registered with the Panvel City Station. Eventually, no charge sheet was filed against him and, therefore, he did not appear amongst the accused in Sessions Case No. 27 of 1991 which came to be tried by the learned Sessions Judge, Raigad, Alibag. The charges were framed for the offence punishable under sections 147, 148, 307, 353 and 395 of the Indian Penal Code and under section 25(1)(a) to the Indian Arms Act. 2. By the judgment dated 24th September, 1996, the learned Sessions Judge, Raigad, Alibag, was pleased to acquit the accused. 3. As stated above, from amongst the petitioners, petitioner No. 1 was arraigned as accused who was acquitted, but petitioner No. 2 could not be made accused, as in the course of investigation before filing of the charge sheet, report under section 169 of the Criminal Procedure Code was submitted before the learned Magistrate who, on acceptance of the same, had recorded that the accused stands discharged. 4. Later on, the Investigating authorities found out that the situation with regard to the original accused No. 2, who is the petitioner No. 2 before us, will also be the same as that of the original accused No. 1 who faced the trial and sought permission for further investigation under section 173(8) of Code of Criminal Procedure from the learned trial Judge of Raigad at Alibag. This permission was obtained on 8th November, 1993. Pursuant thereto, the investigation was conducted and on 12th April, 1996, a charge sheet came to be submitted which, in the aforesaid background, will have to be treated as either an additional charge sheet or a supplementary charge sheet. It refers to C.R. No. 227 of 1990. 4A. Both the petitioners are shown as accused and if one refers to the judgment of the trial Court produced at Exhibit- C, page 24, it is quite obvious that the person shown as accused No. 1 at Exhibit- D, page 43, i.e. the additional charge sheet, is the same as the accused, who has been acquitted. 5. It is correct that at the time when Exhibit- D, page 43 onwards, submitted in the month of April, 1996, the judgment was not delivered. As noted above, the judgment was delivered on 24th September, 1996. 5. It is correct that at the time when Exhibit- D, page 43 onwards, submitted in the month of April, 1996, the judgment was not delivered. As noted above, the judgment was delivered on 24th September, 1996. To that extent, therefore, the investigating agencies were right in approaching the Magistrate Court with the aforesaid charge sheet. Further, in favour of the investigating agencies, it also must be noted that at page 4, column No. 4 with regard to petitioner No. 1 it has clearly been indicated that the Sessions Case No. 27 of 1991 is still sub-judice before the Session Court at Alibag. 6. When the investigating agency had taken all pains in this manner, had there been a little application and more industry soon after the filing of the additional charge sheet on 12th April, 1996, obviously, the situation would have been totally different. The learned Magistrate ought to have informed himself of the urgency of the matter. If anything, the learned Public Prosecutor, in charge of the matter, who has also been conscious of this fact, should have brought this fact to the notice of the learned Magistrate. 7. Whatever be the reason, the matter has remained as it is, and the aforesaid Sessions Case has ended in acquittal. In this background, the filing of the supplementary charge sheet against petitioner No. 1 is totally of no weight. 8. We are therefore required to consider the case of petitioner No. 2. As noted above; he too would have been one of the accused in the Sessions Case but for the report under section 169 which was given at that stage. The reason for the investigating agency to submit report under section 169 was that, according to the accused petitioner No. 2, he was at Badlapur in the Primary Health Center taking treatment for the alleged incident of snake bite. A certificate of the Doctor from the Primary Health Center, Badlapur was produced and the investigating agencies are relying on this document and submitting their report. 9. As revealed in the supplementary charge sheet, the record of the Primary Health Center at Badlapur were found to have been tampered with, documents were fabricated and so called treatment at Badlapur was found, as per the supplementary charge sheet, to be totally baseless. In other words, the plea of alibi was not sustainable as set out in the supplementary charge sheet. In other words, the plea of alibi was not sustainable as set out in the supplementary charge sheet. 10. Had this been the position but for the aforesaid acquittal, obviously, there would have been no substance in the petition. The acquittal has radically altered everything. The event of acquittal which occurred by the judgment dated 24th September, 1996, in our opinion, has completely overtaken the case of the prosecution against petitioner No. 2 as well. 11. The reason is not far to seek if one turns to page 43 of the paper book. A competent Court has evaluated the evidence led before it, and for the reasons stated therein has not accepted the same, and therefore, the order of acquittal has been passed. In the supplementary charge sheet, no new evidence has been indicated so far as the accused are concerned. No doubt there is sufficient material, according to the police, with regard to the said Doctor of Badlapur with whom we are not concerned. We are told that he too has approached this Court by way of petition and therefore, we will not dwell upon the case related to him. 12. Coming back the the case of petitioner No. 2 the evidence, that was led before the Trial Court in Case No. 27 of 1991, as per Exhibit-24 was in the form of the department witnesses and whatever documents they had with them were relied upon. 13. It being the matter of Customs department, the statements under section 108 of the Customs Act were also relied upon. The learned Judge has categorically held that not only the statements were retracted but, on appreciation of evidence, they cannot be said to be given voluntarily. The rigour of the statements is, therefore, very much diluted if not completely destroyed. 14. In this background, to make petitioner No. 2 to undergo the trial, as urged by the other side, in our opinion, would be an exercise in futility. From the aspect of the public policy this is not called for. 15. On one hand, the same evidence will have to be led again and appreciated and, on the other, the aforesaid judgment passed in the Sessions Case No. 27 of 1991, which has not been appealed against having become final, will still hold the field. 16. The learned Addl. 15. On one hand, the same evidence will have to be led again and appreciated and, on the other, the aforesaid judgment passed in the Sessions Case No. 27 of 1991, which has not been appealed against having become final, will still hold the field. 16. The learned Addl. Public Prosecutor was right so far as the theory is concerned that each of the accused may have to face the consequences of his action and the case against him will be considered by the Trial Court in the light of evidence led in respect of the accused. However, when sections 147, 148 and 149 are pressed into service, he being one of the members of unlawful assembly, accused No. 2, in this case, cannot be separated from that of the other. 17. For these reasons, we allow the petition and quash and set aside the proceedings as prayed for. Rule is made absolute. 18. Certified copy is expedited. Petition allowed. -----