IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Crl.MC.No. 1915 of 2009 (F) ----------------------------------- S.C. NO.666/2001 COURT OF SESSIONS, THALASSERY DIVISION AT PAYYANNUR (CRIME NO.81/99 OF PAYYANUR POLICE STATION PENDING AGAINST THE PETITIONERS AS SC.NO.124/08) PETITIONERS / ACCUSED: ------------------------------------- 1. IQBAL, S/O.MOIDEENKUTTY KUNHIMANGALAM, KANNUR. 2. JEBBAR, S/O.ISMAIL HAJI KUNHIMANGALAM, KANNUR. 3. BASHEER, S/O.HAMMED KUNHIMANGALAM, KANNUR. 4. SHARFUDHEEN, S/O.ABDUL KAREEM KUNHIMANGALAM, KANNUR. BY ADV. SRI.C.K.SREEJITH RESPONDENTS / COMPLAINANTS: ------------------------------------------------- 1. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. MANIYAN WILLIAMS, S/O.VINCENT AGED 25 YEARS, KUNHIMANGALAM AMSOM, KOYYAPURAM DESOM, PAYYANNUR, KANNUR DIST. 3. MANIYAN SHILAS, S/O.STANLI AGED 23 YEARS, CHERUTHAZHAM AMSOM, KOYYAPURAM VILLAGE. R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI. SRI.GEORGIE SIMON FOR R2,3 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. =================== Crl.M.C. No. 1915 of 2009-F =================== Dated this the 30th day of June, 2009. O R D E R Petitioners were originally accused Nos.3, 8, 10 and 12 in S.C.No.666/2001 on the file of Assistant Sessions Judge, Payyannur. Prosecution case is that 12 accused therein formed themselves into an unlawful assembly and in furtherance of their common object of promoting communal hatred between different communities on the ground of religion and also to commit murder of second respondent, who belongs to Christian community, armed themselves with deadly weapons attacked second respondent and inflicted injuries and thereby committed offences under Sections 143, 147, 148, 341, 323, 324, 307 and 153(A) read with Section 149 of Indian Penal Code. As all other accused, except accused Nos.1, 4, 6 and 9 were absconding, the case as against others was split up and accused Nos.1, 4, 6 and 11 were tried. As per Annexure IV judgment dated 7-8-2003, learned Assistant Sessions Judge acquitted them. Crl.M.C.No.1915/2009-F -2- When presence of accused Nos.2, 5, 7 and 9 could subsequently be procured, they were tried by the learned Assistant Sessions Judge in S.C.No.49/2003. Under Annexure V judgment those accused were also acquitted. Case as against the petitioners is now pending as S.C. No.124/2008. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case against them contending that no purpose will be served by undergoing the ordeal of a trial when on the evidence all other co- accused were acquitted. It is also contended that subsequently there was a settlement of all the disputes with respondents 2 and 3 and in such circumstances this court is to quash the case applying the law laid down by the Apex Court in Madan Mohan Aboot v. State of Punjab (2008 (3) KLT 19 SC). 2. Learned Counsel appearing for the petitioners, respondents 2 and 3 and learned Public Prosecutor were heard. Crl.M.C.No.1915/2009-F -3- 3. Offences alleged against the petitioners includes an offence under Section 307 of Indian Penal Code. The question is whether applying the principles laid down in Madan Mohan Aboot's case (supra), when offences include an offence under Section 307 of Indian Penal Code, the case could be quashed. In view of the decision of the Apex Court in Manoj Sharma v. State (2008 (4) KLT 417 SC) the question can only be answered in the negative. Therefore based on Madan Mohan Aboot's case (supra) petitioners are not entitled to get the pending sessions case quashed, as the offences include an offence under Section 307 of Indian Penal Code. 4. Then the question is whether for the reason that the co-accused were acquitted, petitioners are entitled to get the case quashed. The fact that the co-accused were acquitted, is not a ground to quash the proceeding as against the absconding accused as sought for by the petitioners. Learned Assistant Sessions Judge acquitted the Crl.M.C.No.1915/2009-F -4- other accused, when it is found on evidence that witnesses did not support the prosecution as against those accused facing trial. For that reason it cannot be said that there will not be any evidence as against the petitioners. Because of the stand taken by respondents 2 and 3, it is possible that there may not be evidence. But on that assumption the case cannot be quashed. Petitioners are at liberty to seek expeditious trial of S.C.No.124/2008. If such a request is made, Assistant Sessions Judge, Payyannur to dispose the case without delay. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE dkr