IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 Crl.Rev.Pet.No. 4548 of 2007() ------------------------------ AGAINST THE ORDER IN CRMP 43/07 IN SC.485/2007 of ADDL.ASSISTANT SESSIONS COURT, N.PARAVUR .................... REVN. PETITIONER: 14TH ACCUSED ------------------------------ SREEKUMAR, PANDIKASALAKKAL HOUSE, KUZHIPPILLY, MUNAMBAM, ERNAKULAM. BY ADV. SMT.K.V.RESHMI RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- 1. C.I OF POLICE, NARACKAL POLICE STATION. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.4548 of 2007 ---------------------------------------- Dated this the 11th day of January 2008 O R D E R This revision petition is directed against an order passed by the learned Additional Assistant Sessions Judge, North Paravur. in a sessions case refusing to discharge the accused by invocation of the jurisdiction under Section 227 Cr.P.C. 2. To the skeletal facts. The first petitioner is the 14th of the 17 accused persons who were arrayed as accused alleging commission of offences punishable under Sections 143,147,148,447,452,324,427 and 307 read with 149 I.P.C. All the other sixteen accused except the petitioner faced trial. They were found not guilty and acquitted for all the charges levelled against them. Only the petitioner survives on the party array. He had appeared before the learned Sessions Judge. He came earlier to this court with Crl.M.C.No.3159 of 2007 and by order dated 15/10/2007 the said petition was dismissed leaving open the option of the petitioner to claim discharge under Section 227 Cr.P.C. 2. The petitioner requested the learned Additional Assistant Sessions Judge to consider his plea of discharge under Crl.R.P.No.4548/07 2 Section 227 Cr.P.C. By the impugned order, the learned Additional Assistant Sessions Judge has rejected the said prayer and has held that charges are liable to be framed against the petitioner. 3. The learned counsel for the petitioner contends that in any view of the matter, all the seventeen co-accused having already been acquitted, the petitioner cannot be found guilty and the surviving allegations do not necessitate framing of a charge for any of the offences. The learned counsel for the petitioner points out that no specific overt act whatsoever is alleged against the petitioner. The petitioner has no culpable liability except vicarious liability with the aid of Section 149 I.P.C. After the acquittal of all the other co-accused, it has to be held that those accused persons were not members of the unlawful assembly. The petitioner by himself cannot constitute an unlawful assembly and he is not liable to face the charge of being a member of the unlawful assembly or vicariously liable for the acts of any other for the reason that he has shared the common object for any such non-existent unlawful assembly. 4. The learned Public Prosecutor concedes that there is no specific allegations that the petitioner had committed any Crl.R.P.No.4548/07 3 culpable overt act. Except that he is a member of the unlawful assembly and that he is vicariously liable for the acts done by other members of the unlawful assembly in prosecution of the common object of the unlawful assembly, there is no allegations whatsoever against the petitioner, it is conceded. I am, in these circumstances, satisfied that the petitioner is absolutely justified in claiming discharge under Section 227 Cr.P.C. 5. The learned counsel for the petitioner places reliance on the decision in Kelu Nair and Others v. State of Kerala [2005 KLD(Crl.)621]. 6. This Crl.R.P is in these circumstances allowed. The impugned order is set aside. It is held that the petitioner is entitled for discharge and he is discharged under Section 227 Cr.P.C. Further proceedings shall stand discontinued. (R.BASANT, JUDGE) jsr Crl.R.P.No.4548/07 4 Crl.R.P.No.4548/07 5 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006 Crl.R.P.No.4548/07 6