IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 Crl.Rev.Pet.No. 783 of 2000() ---------------------------------------- CC.114/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR CRA.192/1997 of II ADDL. SESSIONS COURT, PALAKKAD .................... REVN. PETITIONERS: APPELLANT/ ACCUSED 1 & 2 ---------------------------- 1. AYYAPAN, S/O. ACHUTHAN, AGED 57 YEARS, KIZHAKKEKKARA VEEDU, PUTHUCODE, ALATHUR. 2. SYED MOHAMMED, S/O. KHADER ROWTHER, AGED 50 YEARS, APPAKKAD, PUTHUCODE, ALATHUR. BY ADV. SRI.P.K.ASHOKAN SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT/ RESPONDENT/ COMPLAINANT --------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP. NO.783/2000 ORDER ON CRL.M.P. NO.4171/2000 IN CRL.RP. NO.783/2000 DISMISSED 11.04.2008 SD/- A.K.BASHEER,. JUDGE /TRUE COPY/ P.S. TO JUDGE tss A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 783 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April, 2008. ORDER Petitioners and 13 others were charge sheeted by Vadakkenchery Police in Crime No.233/94 for the offences punishable under Sections 143, 147 and 427 read with Section 149 IPC and also under Sections 3 and 5 of the Prevention of Damage to Public Property act 1984 (for short, the Act). 2. The gravamen of the charge against the accused was that they being members of Communist Part of India (Marxist) had formed themselves into an unlawful assembly in support of a Bandh declared by the Left Democratic Front, with a common object to cause damage to public property and entered into Pudukkode Telephone Exchange and destroyed the telephone equipments, furniture, records etc. The loss sustained by the Department was assessed at Rs.6800/-. 3. The prosecution examined Pws.1 to 6 and marked Exts.P1 to P2 on its side. The learned Magistrate after evaluating the oral and documentary evidence found the petitioners who were arraigned as accused 1 and 2 guilty of the offences punishable under Sections 143, 147 and 427 read with Section 149 IPC. However they were found not guilty of the offence under the Act 1984. Petitioners were accordingly convicted and sentenced to undergo rigorous imprisonment for 6 months each and to pay a fine of Rs.1,000/- each and in default to undergo simple imprisonment for a further period of one month each under Section 147 read with Section 149 RP.783/2000 2 IPC. No separate sentence was awarded to them for the offence under sections 143 and 427 IPC. The trial court acquitted the other accused. The learned Sessions Judge in appeal while confirming the order of conviction of the petitioners reduced the sentence from 6 months to 3 months' rigorous imprisonment. The above order is under challenge in this revision petition. 4. Ms.Dhanya, learned counsel for the petitioners submits that the courts below committed serious illegality and irregularity in holding the petitioners guilty of the offences alleged against them. It is contended by the learned counsel that the trial court having acquitted accused Nos.3 to 15 after finding them not guilty, the petitioners were not liable to be convicted and sentenced for the offences with the aid of Section 147. 5. Learned counsel invites my attention to two decisions of the Supreme Court , the first of which is Amar Singh v. State of Punjab (AIR 1987 SC 826). In this case it was noticed by the Supreme court that there were only four accused in the case including the appellants. The Sessions Court had acquitted the two of them while the High Court acquitted yet another at the appellate stage. Their lordships held that as the appellants were only four in number, there was no question of their forming unlawful assembly within the meaning of Section 149 IPC. Their Lordships observed further: “.....It is not the prosecution case that apart from the said seven accused persons, there were other persons who were RP.783/2000 3 involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an “unlawful assembly” is that such assembly must be of five or more persons, as required under section 141 IPC.....” 6. In Subran v. State of Kerala ((1993) 3 SCC 32) the Apex Court took a similar view. In that case six persons were arraigned as accused for offences punishable under Sections 302, 324, 323, 341 and 148 read with section 149 IPC. The trial court found the appellant (Subran) guilty of the offence punishable under section 302 IPC and sentenced him to suffer rigorous imprisonment for life. Accused 2 to 6 were found guilty of the offence under Section 327 read with Section 149 IPC. Further, accused 1 to 4 were also convicted for the offence under Section 148 and all the accused were convicted and sentenced to suffer rigorous imprisonment for 6 months each under section 147 IPC. and 143 read with section 149 IPC as well. However the High Court while confirming the order of conviction and sentence passed against accused 1 to 3 and 5, acquitted accused Nos.4 and 6. Subran had challenged the order of conviction and sentence passed against him under Section 302 IPC before the Supreme Court. Their Lordships RP.783/2000 4 held that a combined reading of section 141 and 149 IPC would show that an assembly of not less than 5 members is not an unlawful assembly within the meaning of section 141 and could not therefore form the basis for conviction for an offence with the aid of Section 149 IPC. Their Lordships took the view that since appellant No.1 had not been charged for the substantive offence of murder under Section 302 IPC, the trial court was not justified in convicting him for that offence after framing a charge against him for the offence under Section 302 read with Section 149 IPC only. Their Lordships held further thus: “A person charged for an offence under Section 302 IPC read with Section 149 cannot be convicted of the substantive offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law. In view of the dictum laid down by the Apex Court in the two cases referred to above, I am satisfied that the petitioners are entitled to get an order of acquittal. Therefore the order of conviction and sentenced passed against them is set aside. Petitioners are acquitted. Revision Petition is allowed. A.K. Basheer Judge. an.