IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 1915 of 2009() 1. IQBAL, S/O.MOIDEENKUTTY Petitioner 2. JEBBAR, S/O.ISMAIL HAJI 3. BASHEER, S/O.HAMMED 4. SHARFUDHEEN, S/O.ABDUL KAREEM Vs 1. STATE OF KERALA, REP BY Respondent 2. MANIYAN WILLIAMS, S/O.VINCENT 3. MANIYAN SHILAS, S/O.STANLI For Petitioner :SRI.C.K.SREEJITH For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice [ENTITY] Dated :30/06/2009 O R D E R [ENTITY], J. [CASE NUMBER] Dated this the 30th day of June, 2009. O R D E R
Petitioners were originally accused Nos.3, 8, 10 and 12 in [CASE NUMBER] on the file of Assistant Sessions Judge, Payyannur. Prosecution case is that 12 accused therein formed themselves into an unlawful assembly and in furtherance of their common object of promoting communal hatred between different communities on the ground of religion and also to commit murder of second respondent, who belongs to Christian community, armed themselves with deadly weapons attacked second respondent and inflicted injuries and thereby committed offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT]. As all other accused, except accused Nos.1, 4, 6 and 9 were absconding, the case as against others was split up and accused Nos.1, 4, 6 and 11 were tried. As per Annexure IV judgment dated 7-8-2003, learned Assistant Sessions Judge acquitted them. [CASE NUMBER]-F When presence of accused Nos.2, 5, 7 and 9 could subsequently be procured, they were tried by the learned Assistant Sessions Judge in [CASE NUMBER]. Under Annexure V judgment those accused were also acquitted. Case as against the petitioners is now pending as [CASE NUMBER]. This petition is filed under [SECTION] of [ACT] to quash the case against them contending that no purpose will be served by undergoing the ordeal of a trial when on the evidence all other co- accused were acquitted. It is also contended that subsequently there was a settlement of all the disputes with respondents 2 and 3 and in such circumstances this court is to quash the case applying the law laid down by the Apex Court in [PRECEDENT].
2. Learned Counsel appearing for the petitioners, respondents 2 and 3 and learned Public Prosecutor were heard.
[CASE NUMBER]-F
3. Offences alleged against the petitioners includes an offence under [SECTION] of [ACT]. The question is whether applying the principles laid down in [PRECEDENT]'s case (supra), when offences include an offence under [SECTION] of [ACT], the case could be quashed. In view of the decision of the Apex Court in [PRECEDENT] the question can only be answered in the negative. Therefore based on [PRECEDENT]'s case (supra) petitioners are not entitled to get the pending sessions case quashed, as the offences include an offence under [SECTION] of [ACT].
4. Then the question is whether for the reason that the co-accused were acquitted, petitioners are entitled to get the case quashed. The fact that the co-accused were acquitted, is not a ground to quash the proceeding as against the absconding accused as sought for by the petitioners. Learned Assistant Sessions Judge acquitted the [CASE NUMBER]-F other accused, when it is found on evidence that witnesses did not support the prosecution as against those accused facing trial. For that reason it cannot be said that there will not be any evidence as against the petitioners. Because of the stand taken by respondents 2 and 3, it is possible that there may not be evidence. But on that assumption the case cannot be quashed. Petitioners are at liberty to seek expeditious trial of [CASE NUMBER]. If such a request is made, Assistant Sessions Judge, Payyannur to dispose the case without delay. Petition is disposed accordingly.
[ENTITY] JUDGE dkr