IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 Crl.MC.No. 948 of 2009() ------------------------ LPC.66/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER(S): ACCUSED NO.2 --------------------------- NARAYANAN, S/O.KUNHIRAMAN, AGED 43 YEARS, RAMANTHALI AMSOM, THALIPARAMBA, KANNUR. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 948 OF 2009 --------------------------------- Dated this the 12th day of March, 2009 O R D E R This petition is filed with a prayer to quash all further proceedings in L.P.C 66/2004 pending on the file of the Judicial First Class Magistrate, Payyannur. The petitioner is the 2nd accused. It is contended all the remaining four accused faced trial and got acquitted as per Annexure I Judgment. The witnesses also did not support the case of the prosecution. Therefore it is contended that it will be only an attempt in futility to have a trial of this person and therefore the proceedings may be quashed. The learned counsel would contend that since the unlawful assembly is not proved, no action will come under Section 149 of IPC. It is a settled principle that in order to constitute unlawful assembly, it is true there must be five or more persons. But it does not mean that all the five or more persons should be identified. If the prosecution is able to establish that a particular accused along with five other unidentified persons are involved in the case it will come under Crl.M.C.No. 948/2009 -2- Section 149. This court has elaborately considered the question of quashing under Section 482 when the co-accused are acquitted. The dictum laid down in Moosa v. sub Inspector of Police [2006 (1) KLT 552], this court held that the acquittal of some of the accused by itself is not a reason to bar the trial in the case of other accused. Such judgments will be admissible only to show as to who were the parties in the earlier proceedings or the factum of acquittal. This court also held that a judgment not interparties cannot be justify invocation of the doctrine of issue estoppel. When the absconding accused is apprehended and tried later the court has necessarily to consider the legally available evidence and cannot adopt the easy course of acquittal on the premise that the co-accused was acquitted. So the principles laid down in the above decision show that the mere acquittal of a co-accused in the connected trial case shall not be a ground to quash the proceedings under Section 482 of the Crl.P.C. Therefore in the light of the above decision, I do not find any grounds to entertain this petition and therefore the Crl.M.C is Crl.M.C.No. 948/2009 -3- dismissed. In case the accused surrenders and moves for bail, I direct the learned Magistrate to consider it as expeditiously as possible. In order of enable the Magistrate to pass appropriate orders, the surrender as well as the filing of the bail application shall be done in the early hours of the working day. The Crl.M.C is dismissed accordingly. M.N. KRISHNAN, JUDGE vkm