IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.MC.No. 4538 of 2008() ------------------------- CC.482/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR LPC NO.41/02 OF THE JFMC COURT, PAYYANNUR CRIME NO.190/91 OF THE PAYYANNUR POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- GAFOOR THAZHATHEPURAYIL, S/O.AHAMMED,P.O.EDATTU, PAYYANNUR, KANNUR. BY ADV. SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANT -------------------------- THE STATE OF KERALA (S.I OF POLCIE, PAYYANNUR) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4538 of 2008 ------------------------------------------------- Dated this the 9th day of December, 2008 ORDER The petitioner faces indictment as the 8th accused in a prosecution for offences punishable under Secs.143, 147, 148 and 324 read with Sec. 149 IPC. All offences are bailable and the substantive offence punishable under Sec.324 IPC is a compoundable offence. Altogether, 10 accused persons were arrayed as accused in the final report. The petitioner was not available for trial. The case against the co-accused proceeded. It was reported to the court in such trial against the co-accused that the disputes have been settled between the parties and the offences have been compounded. All the accused persons, who faced trial, were found not guilty and acquitted. 2. The petitioner was not available for trial at that point of time. He is the 8th accused. He has now come before this Crl.M.C. No. 4538 of 2008 -: 2 :- Court to pray that the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. may be invoked to quash the surviving prosecution against the petitioner herein. It is submitted that, in any view of the matter, the proceedings are liable to be quashed. 3. The learned counsel for the petitioner submits, first of all, that no specific overt act has been alleged against the petitioner. He is made liable only on the ground that he was a member of an unlawful assembly and that accused 1 and 6 had allegedly indulged in the culpable and contumacious overt acts against the victims. The petitioner is made liable on the short assertion that he was member of an unlawful assembly, the members of which unlawful assembly in prosecution of their common object allegedly indulged in the culpable overt act. Specific allegation is raised only against accused 1 and 6 of having indulged in any such specific overt contumacious act. 4. All the co-accused, who faced trial, have now been acquitted. The learned counsel for the petitioner submits that the decision in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) is not applicable to this case as there is no specific culpable overt act even alleged against the petitioner. The short allegation is that he was member of an unlawful assembly of Crl.M.C. No. 4538 of 2008 -: 3 :- persons. The co-accused have already been acquitted of the charge. The accused persons, who, it is alleged, were guilty of specific overt act, have already been tried found not guilty and acquitted. In these circumstances, the overt act against the principal accused having not been proved, there is no merit in the attempt to hold that the petitioner is vicariously liable for the acts of a co-accused who has been found not guilty of such overt act. 5. I agree with the learned counsel for the petitioner that this is a fit case where notwithstanding the dictum in Moosa the petitioner is entitled to get the proceedings against him terminated. I take note of all the relevant circumstances. The co-accused have already been found not guilty and acquitted. The de facto complainant has compounded the offences allegedly committed by the accused. No specific overt act is alleged against the petitioner. He is sought to be made liable for the overt act committed by another which act has already been found to have been not committed. 6. In the result: (a) This Crl.M.C. is allowed. (b) L.P.C.No.41/02 pending before the learned Judicial Crl.M.C. No. 4538 of 2008 -: 4 :- Magistrate of the First Class, Payyannur, which was registered on the basis of the final report in Crime No.190/91 of the Payyannur Police Station in so far as it relates to the petitioner is hereby quashed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge