IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 Crl.MC.No. 590 of 2011() ---------------------------------- CC.1571/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR. CRIME NO.486/2008 OF THRISSUR TOWN EAST POLICE STATION. .................... PETITIONER(S): ACCUSED ---------------------------------------- 1. ARUN RAO, S/O.GOVINDA RAO, MADIMUGAR HOUSE, AYYANTHOLE VILLAGE, THRISSUR. 2. NITHIN, S/O.VIJAYAN, AZCHAMKATTIL HOUSE, MUKATTUKARA DESOM, NETTISSERY VILLAGE, THRISSUR. 3. BINOY, S/O.SATHYANATHAN, MELA VADAYA KALATHIL HOUSE, PONMADA VILLAGE, TIRUR TALUK, MALAPPURAM. 4. SAFDAR HASHMI, S/O.MADHAVAN, THAMARASSERY HOUSE, MARATHAKARA VILLAGE, THRISSUR. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.590 of 2011 ==================================== Dated this the 15th day of March, 2011 O R D E R Petitioners are accused 1 to 4 in Crime No.486 of 2008 of Thrissur Town East Police Station and C.C. No.1571 of 2010 of the court of learned Judicial First Class Magistrate-I, Thrissur for offences punishable under Sections 160 and 427 of the Indian Penal Code. Case is that on 14.07.2008 at about 7.40 p.m. petitioners entered the room of Principal of St. Thomas College, Thrissur, created commotion, accused 5 to 8 also entered the said room and there ensued a fight between petitioners and accused 5 to 8. In the course of that incident the first petitioner broke the glass, second petitioner broken a plastic chair in the room of the Principal and thereby committed the offence. Police submitted final report against petitioners and accused 5 to 8. Accused 5 to 8 approached this Court in Crl. M.C. No.1897 of 2009 and this Court quashed the case (then C.C. No.1723 of 2008) against accused 5 to 8 holding that on the allegations made by the prosecution no offence under Sec.160 of IPC could stand. Petitioners request this court to quash proceeding against them on the ground that offence CRL.M.C. No. 590 of 2011 -: 2 :- under Sec.160 of the IPC cannot stand and so far as offence under Sec.427 of the IPC is concerned there is no proper identification of the petitioners. It is also contended by learned counsel that allegation of mischief is only against petitioners 1 and 2 and there is no allegation that it was in furtherance of common intention of all the petitioners that petitioners 1 and 2 committed mischief. 2. Final report to the extent it concerned Sec.160 of the IPC is liable to be quashed for the reason that Section 159 of the IPC defines 'Affray' as fight between two or more persons in a 'public place to disturb public peace'. This Court while disposing of Crl. M.C. No.1897 of 2009 held that no such offence is involved on the facts of the case. In the circumstances final report to the extent it concerned Sec.160 of the IPC against petitioners is liable to be quashed. 3. So far as offence under Sec.427 of the IPC is concerned charge is that petitioners 1 and 2 committed mischief. It is contended that there is no proper identification of the person who committed mischief and at any rate there is no case that alleged mischief is committed in furtherance of common intention. But the proceeding cannot be quashed on the said grounds. I CRL.M.C. No. 590 of 2011 -: 3 :- make it clear that it is open to the petitioners to plead before the learned Magistrate at the time of framing charge that in the absence of allegation of common intention charge under Sec.427 of the IPC cannot stand against all the petitioners. Hence the Criminal Miscellaneous Case is allowed in part in the following lines: (i) Final report in Crime No.486 of 2008 of Thrissur Town East Police Station, cognizance taken thereon and proceeding against petitioners/accused 1 to 4 in C.C. No.1571 of 2010 of the court of learned Judicial First Class Magistrate-I, Thrissur to the extent it concerned offence under Sec.160 of the IPC are quashed. (ii) So far as offence under Sec.427 of the IPC is concerned it is made clear that it is open to petitioners 3 and 4 to plead for discharge before the learned Magistrate (if charge has not already been framed) on the ground that allegation is only against petitioners CRL.M.C. No. 590 of 2011 -: 4 :- 1 and 2 and there is no allegation of common intention among petitioners to commit the said offence. If such a contention is raised, learned Magistrate shall decide the issue as provided under law. I make it clear that I have not expressed any view on the contention of petitioners. (iii) Warrant of arrest issued to the petitioners will stand in abeyance for a period of one month from this day or till petitioners appeared before learned Magistrate, whichever is earlier. THOMAS P. JOSEPH, JUDGE. vsv