IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 3683 of 2007() ------------------------------ AGAINST THE ORDER DATED 13/04/2007 IN CRMP.39/2007 IN SC.274/2007 of ASSISTANT SESSIONS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): 3RD ACCUSED:- --------------------- BIJU, S/O.PALLIYIL KRISHNANKUTTY, POTTA VILLAGE, IRINJALAKKUDA. BY ADV. SMT.DHYNYA P.ASHOKAN SRI.M.R.VENUGOPAL RESPONDENT(S): COMPLAINANT:- --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 3683 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 27th day of March, 2009 O R D E R Heard both sides. 2. Revision petitioner who was the 3rd accused in Crime No.85/1994 of Chalakudi Police Station registered for offences punishable under Sections 143, 147, 148, 332, 323 and 307 read with section 149 IPC and 3 of the Explosive Substances Act,1908, challenges the order dated 13-4-2007 passed by the Principal Assistant Sessions Judge, Irinjalakuda dismissing his application for discharge as Crl.M.P. No.39/2007. 3. The case of the prosecution can be summarized as follows: On 5-3-1994 at about 7.30 p.m. all the 38 accused persons formed into an unlawful assembly armed with deadly weapons like sword, sword stick, knife and explosive substances in front of the C.P.I.(M) office building at Chalakudy and in furtherance of their common object, they committed rioting armed with deadly weapons and caused hurt to Cws.1 to 3 and, therefore, they committed offences punishable under the aforementioned sections. Crl.R.P. 3683/2007 -2- 4. The revision petitioner was absconding,19th accused in this case is even now absconding and 11th accused died even before the commencement of the trial. The remaining 35 persons stood trial before the Additional Assistant Sessions Judge, Irinjalakuda in S.C. No.358/2001. The learned Addl. Sessions Judge found that there was no evidence to prove that any of the 35 accused persons committed the offences alleged against them and, accordingly, they were acquitted of the offences punishable under Sections 143, 147, 148, 332, 324, 307 read with section 149 IPC and Section 3 of the Explosive Substances Act. The said judgment has become final. 5. Petitioner who was employed abroad and who was shown as absconding before the trial court filed Crl.M.C. 414/2007 before this Court for quashing proceedings against him on the ground that all the co-accused in the case were acquitted after trial by the learned Addl. Asst. Sessions Judge. In the light of the decision of the Full Bench in Moosa V. Sub Inspector of Police (2006(1) KLT 552, this Court was not inclined to quash proceedings. However, this Court permitted the petitioner to surrender before the trial court and plead for a discharge. The petition filed by the petitioner for discharge was Crl.R.P. 3683/2007 -3- dismissed by the court below, as per the impugned order. 6. When all the 35, out of 38 accused persons, who were allegedly members of the unlawful assembly were acquitted of all the offences, those who remain are the revision petitioner and 19th accused. When the specific case of the prosecution was that these 38 specified accused persons were members of the unlawful assembly, and out of them 35 accused persons have been acquitted after trial, the remaining 3 cannot constitute an unlawful assembly, since there is no requisite number viz., five persons, envisaged as per law. Hence, no useful purpose will be served by placing the petitioner on trial. The precious time of the court also cannot be wasted for an exercise in futility. I am fortified in my view by the decision of the Apex Court in Subran @ Subramanian V. State of Kerala ((1993)3 SCC 32) and Dupa Chamar and others V. State of Bihar ((2002)6 SCC 506). The Principal Assistant Sessions Court, Irinjalakuda ought to have discharged the petitioner, in view of the supervening event namely, the acquittal of the remaining 35 co-accused. 7. The impugned order is set aside and C.M.P.No.39/2007 filed before the court below shall stand allowed. The revision petitioner is discharged of all the offences alleged against him in Crl.R.P. 3683/2007 -4- S.C. No.274/2007. This will be deemed to be discharge under section 227 Cr.P.C. This revision is disposed of as above. V. RAMKUMAR, JUDGE. mn.