IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 Crl.MC.No. 926 of 2011() ------------------------------ CC.1230/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS, PERUMBAVOOR CRIME NO.409/2009 OF KALADI POLICE STATION .................... PETITIONER(S):ACCUSED NOS. 2 AND 3 ----------------------------------------------- 1. MURUKESHAN, S/O.SHANGARALINGA NADAR, AGED 24, KALIYAMMANKOVIL THERUVIL, PAVANASHAPURAM, PUTHOOR TALUK, THIRUNELVELI DISTRICT, TAMIL NADU STATE. 2. SHELVARAJ, S/O.SHANGARA NADAR, AGED 20, KALIYAMMANKOVIL THERUVIL, PAVANASHAPURAM, PUTHOOR TALUK, THIRUNELVELI DISTRICT, TAMIL NADU STATE. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S):COMPLAINANT ------------------------------------- THE STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KALADI POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.926 of 2011 --------------------------------------- Dated this 30th day of May, 2011 ORDER Petitioners are accused 2 and 3 in Crime No.409 of 2009 of Kalady Police Station for offence punishable under Sec.401 of the Indian Penal Code (for short, "the IPC”). Case is that on 14.04.2009 at about 1.30p.m petitioners were found in the company of the first accused who is a DC of Pala Police Station, on seeing the police party all of them ran away and they were chased and apprehended. Annexure-A1 is the final report submitted by the Investigating Officer against petitioners and the first accused. Learned counsel submitted that petitioners are not involved in any other case and there is no material on record to show that petitioners are associated with the first accused who is said to be a DC of Pala Police Station. It is also the submission of petitioners that they are engaged in collecting scrap. Learned Public Prosecutor submitted that there are materials to show that petitioners are associated with first accused and are liable for offence under Sec.401 of the IPC. It is contended that it is a matter of evidence whether petitioners are actually involved in the incident or not. Crl.M.C.No.926 of 2011 -: 2 :- 2. Under Sec.401 of the IPC, whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery shall be punished with imprisonment referred to therein. The ingredients of offences punishable under Sec.401 of the IPC are that there must be in existence of a gang of persons, the gang should be associated for habitually committing theft or robbery and the accused should belong to that gang. The question whether petitioners had associated with the first accused for the purpose of habitually committing theft or robbery is a matter for evidence and proper inference to be drawn therefrom. In the circumstance the request to quash proceeding cannot stand. This criminal miscellaneous case is disposed of without prejudice to the right of petitioners to raise appropriate defence before the learned Magistrate. (THOMAS P JOSEPH, JUDGE) Sbna/-