IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.MC.No. 10 of 2009() ----------------------- CRIME NO. 142/07 OF KASABA POLICE STATION, KOZHIKODE AGAINST THE ORDER IN LP. 37/2007 IN CC.382/2006 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... PETITIONER(S): ACCUSED ---------------------- R.YOUSEF, S/O.IBRAHIM, AGED 37 YEARS, RAROTH HOUSE, PERUNGADI, MAHE. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): COMPLAINANT -------------------------- THE STATEE OF KERALA,REPRESENTED BY THE STATION HOUSE OFFICER,KASABA POLICE STATION, KOZHIKODE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 10 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of January, 2009 O R D E R The petitioner faces indictment as the second accused along with six others in a prosecution for offences punishable under Sections 143, 147 and 283 r/w. 149 I.P.C. Investigation was completed. Final report was filed. Cognizance was taken. All the other accused were available for trial, but the petitioner was not available for trial. After the trial all the co-accused were found not guilty and acquitted. The case against the petitioner was split up and refiled. Coercive processes have been issued against him. 2. The learned counsel for the petitioner submits that in the light of the judgment of acquittal in favour of the co-accused, the case against the petitioner has no legs to stand on. The crux of the allegations was that the petitioner, along with the other co- accused, was member of an unlawful assembly of persons, which unlawful assembly of persons, in furtherance of their common Crl.M.C.No. 10 of 2009 2 object had allegedly committed the offence punishable under Section 283 I.P.C. All the co-accused having already been acquitted, the petitioner by himself cannot constitute an unlawful assembly. The prosecution has no case that the petitioner was member of an unlawful assembly with any one else other than the co-accused who faced trial. In these circumstances it is submitted that no specific overt act is alleged against the petitioner herein also. It having not been established that there was any unlawful assembly or that the petitioner had common object and responsibility for any act of such unlawful assembly, there is no merit in the attempt to prosecute the petitioner. The prosecution against the petitioner may be quashed. This may be reckoned as exception to the dictum of the Full Bench in Moosa v. S.I. of Police (2006 (1) KLT 552) and the proceedings against the petitioner may be quashed, it is prayed. 3. Notice was given to the learned Prosecutor, who does not oppose the application. It is conceded that no specific overt act is alleged against the petitioner. I am satisfied that the request can be accepted. Crl.M.C.No. 10 of 2009 3 4. In the result: a) This Crl.M.C. is allowed. b) The prosecution surviving against the petitioner as C.C. 382 of 2006, whoich has since been transferred to the list of long pending cases as L.P. 37 of 2007, in which the petitioner is the accused, is hereby quashed. c) Needless to say, proceedings under Section 446 Cr.P.C., if any, pending against the petitioner and his sureties shall be disposed of in accordance with law. (R. BASANT) Judge tm