IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 Crl.MC.No. 93 of 2008() ----------------------- CC.363/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER: ACCUSED NOS.1 AND 2 -------------------------------------------------------------- 1. M.IQBAL, S/O. ASSAINAR, AGED 28 YEARS, MUTTON HOUSE, ETTIKULAM, RAMANTHALI, PAYYANNUR, KANNUR DISTRICT. 2. M.KALAM, S/O. HAMZA, AGED 28 YEARS, MARIYATHINTAKATH, ETTIKULAM, RAMANTHALI, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: COMPLAINANT ----------------------------------------------------- 1. MUHAMMED RAFI, S/O. ASSAINAR, THAZHATHU KALLUMMAL HOUSE, PALAKODE, TALIPARAMBA TALUK. 2. STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, PAYYANNUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ SRI.SAKIR.K.H. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.93 of 2008 = = = = = = = = = = = = = = Dated this the 11th day of February, 2008 ORDER The petitioners, who are accused Nos.1 and 3 in Crime No.757/2003 of Payyannur Police Station registered for offences punishable under Sections 143,147,148,341,323,324,506(ii) read with 149 IPC, seek to quash the proceedings pending against them as C.C.No.106/2004 on the file of J.F.C.M, Payyannur. There were altogether five accused persons of whom the remaining three have been acquitted, after trial, by the learned Magistrate as per order dated 20.06.07 in C.C.No.106/2004. The petitioners herein are the two persons who were absconding. 2. Pending this Crl.M.C, the petitioners and the de facto complainant have filed Crl.M.A.No.868 of 2008 stating that the offences punishable under Sections 341,323,324 and 506(ii) IPC have been compounded between the parties and seeking composition of the said offences. The composition as aforesaid is recorded. It will have the effect of acquittal of revision petitioners for offences punishable under Sections 341,323,324 and 506(ii) IPC in view of Section 320(8) Cr.P.C. Crl.M.C.No. 93 of 2008 2 3. What now survives is the question as to whether other offences namely offences punishable under Sections 143,147,148 could survive after the acquittal of the petitioners of the offences punishable under Section 341,323 and 506(ii) IPC. 4. In order to attract Sections 143,147,148 and 149, there should be an “unlawful assembly” which expression postulates the assembly of five or more persons sharing any of the common objects enumerated under Section 141 IPC. When the petitioners have been acquitted of the aforementioned compoundable offences, it cannot be said that the petitioners along with three others assembled on the date and place of occurrence with the common object of committing any of the aforementioned offence. If so, an essential ingredient of the offence is lacking. That apart, the other three persons who allegedly assembled along with petitioners to form the unlawful assembly have been acquitted after trial as per Annexure A1 Judgment. Hence the case against the petitioners cannot be permitted to be tried and by doing so, it would be an abuse of the Crl.M.C.No. 93 of 2008 3 process of the Court. 5. Accordingly, C.C.No.363/2007 on the file of J.F.C.M, Payyannur , so far as, it relates to Sections 143,147,148 and 149 is also quashed. This Crl.M.C is allowed. V. RAMKUMAR, JUDGE sj