IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 Crl.MC.No. 3151 of 2008() ------------------------- SC.45/2008 of SESSIONS COURT, MANJERI .................... PETITIONER: ------------ SAIDALAVI, S/O.KAMMUKUTTY, AGED 28, CHENATH PURAYI, PARAMBIL PEEDIKA, MALAPPURAM DISTRICT. BY ADV. SRI.HARISH R. MENON RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,ADVOCATE GENERAL'S OFFICE, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3151 of 2008 ------------------------------------- Dated this the 26th day of August, 2008 ORDER Petitioner faced indictment along with 4 others for the offence punishable under Section 402 I.P.C. Altogether there were 5 accused persons. The crux of the allegations against the accused persons is that they, at about 3 a.m on 23.12.05, were found together in assembly near the bus waiting shed at High Schoolpady, Pandikkad with weapons in a car bearing Reg.No.KL.07.N.2077. It was alleged that they had assembled there for the purpose of committing dacoity and are consequently guilty of the offence punishable under Section 402 I.P.C. 2. The case was committed to the Court of Session. The petitioner was not available for trial. The learned Sessions Judge proceeded with the trial. Accused 1 and 3 to 5 were found not guilty and acquitted. The case against the petitioner was split up and renumbered. The case against the petitioner is now pending as S.C.No.45 of 2008. Crl.M.C. No.3151 of 2008 2 3. The learned counsel for the petitioner submits that though the prosecution had alleged that all the 5 specified accused were found together at a certain place and were arrested together, the learned Sessions Judge, after trial, had come to the conclusion that the said allegations against accused 1 and 3 to 5 are not legally sustainable. Accordingly they have been found not guilty and acquitted. 4. The learned counsel for the petitioner submits that in view of the nature of the offence alleged against the petitioner - the one under Section 402 I.P.C, the substratum of the prosecution case is lost with the acquittal of the co-accused. If those accused persons were not present with the petitioner, even if the entire allegations against the petitioner were accepted, the offence under Section 402 I.P.C would not lie against the petitioner. In these circumstances, the continuance of the prosecution against the petitioner would be totally non productive and would serve the cause only of vexation and harassment of the petitioner. Section 402 I.P.C reads as follows: “Assembling for purpose of committing dacoity-- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with Crl.M.C. No.3151 of 2008 3 rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.” In order to attract the offence under Section 402 I.P.C, the indictee must be one of 5 or more persons assembled for the purpose of committing dacoity. Even if he were standing alone for the purpose of committing dacoity, he shall not be guilty of the offence punishable under Section 402 I.P.C. The very specific case of the prosecution is that there were 5 accused persons and hence each of them had committed the offence under Section 402 I.P.C. All the co-accused having been found not guilty and acquitted, the allegations against the petitioner have no legs to stand on and the proceedings are not liable to be continued, submits the learned counsel for the petitioner. 5. The learned Public Prosecutor submits that in the light of the Full Bench decision in [Moosa v. Sub Inspector of Police [2006(1) KLT 552], the petitioner cannot claim any advantage from the judgment of acquittal passed in favour of the co-accused. I am unable to agree. This is not a case where the petitioner herein is trying to take advantage of the paucity of evidence in the prosecution against the co-accused. The very contention is that the substratum of the prosecution case is lost by the acquittal of the co-accused in the light of the very specific Crl.M.C. No.3151 of 2008 4 assertion made in the charge against the petitioner. According to the prosecution, there were 5 individuals. They were the 5 named accused. All of them were arrested at the scene. It is not as though the co-accused secured the acquittal on the ground that they were not identified. There is no scope for a contention that there were 5 accused, but the other 4 were not the co- accused, but different individuals. In any view of the matter, it is thus evident that the bottom is knocked out of the allegations raised against the petitioner for the offence under Section 402 I.P.C. I am, in these circumstances, satisfied that the petitioner is entitled to invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 6. In the result: i) This Crl.M.C is allowed; ii) S.C.No.45 of 2008 pending before the Court of Session, Manjeri against the petitioner is hereby quashed; (R.BASANT, JUDGE) rtr/-