IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.MC.No. 3761 of 2008() ------------------------- CRIME NO. 18/2001 OF KUNNAMANGALAM POLICE STATION LP.68/2004 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... PETITIONER/ACCUSED: ------------------------------ MUHAMMED ABDUL NISSAR, S/O MUHAMMED ALI, AGED 28 YEARS, KAARI HOUSE, MUKKAM P.O., KOZHIKODE. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KUNNAMANGLAM POLICE STATION, KOZHIKODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3761 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2008 O R D E R The petitioner is the third accused in a prosecution for offences punishable, inter alia, under Sections 326, 307 r/w. 149 I.P.C. Altogether there were 9 accused persons. All other eight accused stood trial. The petitioner was not available for trial. They have been found not guilty and acquitted. The case against the petitioner has been split up and the proceedings in committal is pending before the J.F.M.C., Kunnamangalam as L.P. No. 68 of 2004. 2. Eventhough there was a submission at the Bar that there has been settlement of the disputes between the victim and the petitioner, there is nothing produced before Court to substantiate that assertion. Therefore the attempt that was made for securing quashing of proceedings with the help of the dictum in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19) and Nikil Merchant v. C.B.I. (2008 (3) KLT 769) cannot succeed. Crl.M.C.No. 3761 of 2008 2 3. The learned counsel for the petitioner submits that the co- accused having already been acquitted, the petitioner is entitled for quashing of proceedings against him. The learned counsel builds up an argument that all the co-accused having already been acquitted, the petitioner cannot be found guilty of being a member of an unlawful assembly. All the co-accused have been acquitted and there is no contention that any other person was available to make the presence of the petitioner culpable as a member of an unlawful assembly. The learned counsel further submits that specific overt acts are alleged only against accused 1 and 2. They have already been found not guilty and acquitted. No specific allegation is raised against the petitioner. In these circumstances the prosecution against the petitioner is liable to be quashed. In as much as there is no allegation even, against the petitioner of the commission of any overt act, the continuance of the prosecution is without any merit or substance and would be an exercise in futility. The petitioner cannot be found directly or vicariously liable for any offence, urges the counsel. In these circumstances, notwithstanding the dictum of the Full Bench in Moosa v. S.I. Of Crl.M.C.No. 3761 of 2008 3 Police (2006 (1) KLT 552), proceedings against the petitioner are liable to be quashed, it is submitted. 4. Notice was given to the learned Prosecutor, who concedes that no overt act whatsoever was alleged against the petitioner. The only allegation against the petitioner is that he was a member of an unlawful assembly. All the 8 co-accused (altogether there are nine accused persons) having already been found not guilty and acquitted, the petitioner cannot now be alleged to be a member of an unlawful assembly. No specific allegation having been raised against the petitioner, he cannot be held to be principally liable for any offence. The offenders, against whom specific over acts were alleged, having already been found not guilty, the petitioner cannot made liable vicariously also. In these circumstances the proceedings against the petitioner may be quashed, it is prayed. 5. In the facts and circumstances of this case, I find merit in the contention of the learned counsel for the petitioner. In as much as there is no specific allegation against the petitioner and in as much as all the co-accused have already been acquitted, the petitioner cannot Crl.M.C.No. 3761 of 2008 4 be held liable for any principal act to attract culpable liability nor can he be found vicariously guilty of any offence allegedly committed by others. 6. In the result: a) This Crl.M.C. is accordingly allowed. b) The surviving prosecution against the petitioner in L.P. 68 of 2004 pending before the J.F.M.C.. Kunnamangalam is hereby quashed. c) The learned Magistrate shall make necessary entries and close the proceedings against the petitioner. d) Needless to say, proceedings, if any, pending against the petitioner and his sureties under Section 446 Cr.P.C. shall be disposed of in accordance with law. (R. BASANT) Judge tm