IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.MC.No. 3837 of 2007(F) ------------------------------------- SC.NO.306/2007 OF SESSIONS COURT, THALASSERY. .................... PETITIONERS/ACCUSED NOS.1, 3, 4 TO 10, 15 TO 22: ---------------------------------------------------------------------------- 1. PUTHIYAPURAYIL RAZACK, S/O.MUHAMMED, AGED 35, PUTHIYA PURAYIL HOUSE, KEEZHUR AMSOM DESOM, IRITTY, KANNUR. 2. ASHRAF PARAYIL, S/O.MOOSA ARAYAKKOOL, AGED 33, THADANGAYIL HOUSE, MUZHAKKUNNU AMSOM, VILAKKOD, IRITTY. 3. K.SREEDHARAN, S/O.KUNHIRAMAN, AGED 49, PRATHIBHA NIVAS, PAYAM AMSOM, DESOM, VATTYARA, IRITTY. 4. SUBAIR CHOORYOT, S/O.MAYAN, AGED 49, MUBARAK MANZIL, KEEZHUR AMSOM, PUNNAD, KANNUR. 5. K.JANARDHANAN, S/O.KANNAN, AGED 57, CHURKOTHUMMAL HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR, KANNUR. 6. GANGADHARAN ATHIKKAL, S/O.APPA, AGED 52, ATHIKKAL HOUSE, PAYAM AMSOM, VATTYARA, KANNUR. 7. SHIJU .O., S/O.KUNHAPPA, AGED 27, KATTILEPURAYIL HOUSE, PAYAM AMSOM, VATTYARA, KANNUR. 8. K.KUNHIKRISHNAN, S/O.KUNHOOTTY, AGED 49, VAZHAYIL HOUSE, PAYAM AMSOM, VATTYARA, KANNUR. 9. P.P.USMAN, S/O.MAMMAD, AGED 41, PUTHIYAPURAYIL HOUSE, KEEZHUR AMSOM, DESOM, IRITTY. CRL.M.C. NO. 3837/2007-F: 10. PUTHUSSERI VIJAYAN, S/O.NARAYANAN, AGED 43, AZHEEKODAN HOUSE, KEEZHUR AMSOM, PAYANCHERI, KANNUR. 11. K.VIJAYAN, S/O.ACHUTHAN NAIR, AGED 49, PAYAM AMSOM, DESOM, NEAR IRITTY BRIDGE. 12. MANOHARAN KAITHAPRAM, S/O.GOVINDAPOTHUVAL, AGED 47, KEEZHUR AMSOM, PAYANCHERI, VIKAS NAGAR, KANNUR. 13. KATTINTAVIDA SURESH @ KATTI SURESH, S/O.GOVINDAN, AGED 39, PUTHOOR AMSOM, KAIVELIKKAL, KANNUR. 14. CHAMAYIL RAMESHAN @ PARAPPURATH RAMESHAN, S/O.KUNHAMBU, AGED 42, KUTHUPARAMBA AMSOM, AMBILAD. 15. MANIYATH ASHOKAN, S/O.NANU, AGED 36, KANDAMKUNNU AMSOM, MERUVAMBAYI, KANNUR. 16. PONNANTHERI PRABHULAL, S/O.KUMARAN, AGED 35, KANDAMKUNNU AMSOM, KAITHERI, KANNUR. 17. KAKKOTH PRAKASHAN, S/O.CHATHU, AGED 36, MELERI HOUSE, KUTHUPARAMBA AMSOM, AMBILAD. BY ADVS. MR.K.S.MADHUSOODANAN, MR.T.V.JAYAKUMAR NAMBOODIRI, MR.THUSHAR NIRMAL SARATHY, MR.M.M.VINOD KUMAR, SMT.K.M.RAMYA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, IRITTY POLICE STATION, IRITTY. R1 & R2 BY PUBLIC PROSECUTOR MR. K.J. MUHAMMED ANSAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3837 OF 2007 ------------------------------------------ Dated 4th November 2009 O R D E R Whether an accused person who is allegedly member of unlawful assembly but not armed with deadly weapon could be charged for an offence under Section 148 of Indian Penal Code is the question to be decided. 2. Petitioners are accused 1,3 to 10 and 15 to 22 in S.C.306/2007 on the file of Sessions court, Thalassery. Annexure-I charge was framed against all the accused independently for the offences under Sections 143, 147, 148, 341 and 302 and also read with Section 149 of Indian Penal Code and Sections 3 and 5 of Explosive Substances Act and Section 27(1) of Arms Act. This petition is filed under Section 482 of Code of Criminal Procedure to quash the third charge as against the petitioners contending that when prosecution has no case that petitioners were armed with deadly weapons, a charge for an offence under Section 148 of Indian Penal Code as against the Crmc 3837/07 2 petitioners is not sustainable. 3. Question is squarely covered by the Division Bench decision of this court in Suresh v. State of Kerala (2006 (1) KLT 78). Division Bench held. “27. The conviction of all the accused for the offence punishable under S.148 of the Indian Penal Code without a finding that those who were so convicted were armed with deadly weapons is also unsustainable. Persons not armed with deadly weapons cannot be convicted under S.148 I.P.C with the aid of S.149 of I.P.C for the mere reason that they were members of an unlawful assembly. (See Vijayan v. State of Kerala -1959 KLT 704 (last para), Picharu Bhati and others v. State of Orissa- 1964 (1) Crl.L.J.117, In re P.Abdul Sattar & Ors-AIR 1961 Mysore 57, In re Muthusami Goundan & Ors.- AIR 1942 Mad. 420 and Kabur Singh and Others v. State of Punjad 1995 SCC (Crl)1035).” 4. Section 148 of Indian Penal Code Crmc 3837/07 3 provides that whoever is guilty of rioting, being armed with a deadly weapon or with anything which used as a weapon of offence, is likely to cause death, shall be punished with sentence provided therein. Therefore, charge for the offence under Section 148 of Indian Penal Code can be framed against an accused only if, prosecution has a case that he was armed with deadly weapon at the time of committing the offence. When prosecution has no case that petitioners were armed with deadly weapon charge for the offence under Section 148 as against the petitioners cannot be framed. 5. Learned counsel appearing for the petitioners asserted that materials before the Sessions court establish that accused 1,3 to 10 and 15 to 22 were not armed with any deadly weapon at the time of commission of offence. Learned Public Prosecutor did not dispute this fact. When there is no case for the prosecution that petitioners were armed with deadly weapon at the time of commission of offence third charge as against the petitioners will not lie as that charge would be only on the other accused who were allegedly holding weapons at that time. Even with the aid of Section 149 of Indian Penal Crmc 3837/07 4 Code, an accused who was not having a weapon could be convicted. Petition is allowed. Third charge as against the petitioners, i.e, accused 1, 3 to 10 and 15 to 22 is quashed. Sessions Judge is directed to proceed with the trail as against the other offences as against the petitioners. M.SASIDHARAN NAMBIAR, JUDGE. uj.