IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.MC.No. 3751 of 2006() ------------------------- CC.204/2005 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR (CRIME NO. 83/94 OF CHALAKUDI POLICE STATION) .................... PETITIONER(S): ACCUSED NO.8 ---------------------------- BIJU, S/O. PALLYIL KRISHNANKUTTY, POTTA VILLAGE, THRISSUR DISTRICT. BY ADVS. SRI.P.K.ASHOKAN SMT.DHANYA P.ASHOKAN RESPONDENT(S): COMPLAINANT --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P. RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN CRL. M.A. NO. 6111 OF 2006 IN CRL. M.C. NO. 3751 OF 2006 DISMISSED 23.3.2009 Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M..C. NO. 3751 OF 2006 -------------------------------------------- Dated this the 23rd day of March, 2009 O R D E R Accused No.8 in Crime No.83 of 1994 of Chalakudy Police Station is the petitioner herein. He along with 14 others were charge sheeted in the above crime for having committed offences punishable under Sections 143, 147, 447, 448 and 427 read with Section 149 of the Indian Penal Code and also Section 3 of the Explosive Substances Act. Originally, the case was taken on the file of the Judicial First Class Magistrate's Court, Chalakudy as C.P. No.14 of 1996. During the pendency of the case, accused No.11 died. Charge against him was thus abated and thereafter, after completing all the procedures required to be followed under Section 207 Cr.P.C., the matter was committed to the Court of Session, Thrissur. The learned Sessions Judge made over the case to the court of the Principal Assistant Sessions Judges Irinjalakuda for trial and disposal in accordance with law. In fact, the case was committed to the Court of Session solely because of the inclusion of the offence under Section 3 of the Explosive Substances Act against the accused persons. However, the Principal Crl.M.C. No. 3751/2006 2 Assistant Sessions Judge, Irinjalakuda found that there was no valid sanction from the Central Government to prosecute the accused and, therefore, they could not be prosecuted under Section 3 of the Explosive Substances Act. Accordingly, the case was transferred to the Chief Judicial Magistrate's Court, Thrissur for trial. Thereafter, all the accused except the petitioner herein and accused No.14 were tried by the learned Chief Judicial Magistrate, Thrissur in C.C. No.82 of 2000. The case of the petitioner herein and that of accused No.14 was split up and refiled as C.C. No.204 of 2005 before the trial court. In respect of the accused who stood trial in C.C. No.82 of 2000, their case ended in acquittal as is evident from Annexure C judgment. 2. The petitioner herein submits that he was aged 18 at the time of the alleged commission of the offence and he attempted to give explanation for his action in absconding and staying away from the trial. Whatever that be, it is a fact that the petitioner was absconding. Now, on coming to know about the acquittal of 12 of the accused persons who faced trial, he has approached this Court by filing the above Crl. M.C. with a prayer to quash Annexure B final report in so far as it relates to him and pending as C.C. No. 204 of 2005 before the Chief Judicial Magistrate's Court, Thrissur. Crl.M.C. No. 3751/2006 3 3. There can be no doubt that the acquittal of the accused persons who stood trial cannot be a reason for quashing the charge sheet and all further proceedings against a person like the petitioner who absconded and stayed away from the process of the court. If that alone was the contention raised in this Crl. M.C., there can be no doubt that has only to be rejected in view of the catena of decisions on the said point. However, in this case, learned counsel for the petitioner, Smt. Dhanya P. Ashokan brought to my notice two decisions of the Honourable Apex Court in Subran v. State of Kerala reported in (1993) 3 S.C.C. 32 and Dhupa Chamar v. State of Bihar reported in (2002) 6 S.C.C. 506 to canvass the position that taking into account the factum of acquittal of the 12 accused persons out of the 14, the remaining accused persons including the petitioner cannot be convicted with the aid of Section 149 I.P.C. in the facts and circumstances revealed from Annexure B charge sheet and Annexure C judgment. Further it is brought to my notice that no specific overt acts were alleged against the petitioner whilst they were alleged only against accused Nos. 2 to 5 as is obvious from Annexure B charge sheet. In short, there is no specific charge alleged against the petitioner and, therefore, conviction for commission of any substantive offence cannot be recorded or sustained against him even if proceedings are permitted to be Crl.M.C. No. 3751/2006 4 continued against him. According to the counsel for the petitioner, the petitioner was arrayed as an accused in Crime No.83 of 2004 solely with the aid of Section 149 I.P.C.. 4. It is evident from Annexure C judgment that during trial, PWs.1 to 4 were examined by the trial court. PW.1 was the defacto complainant. None of the witnesses including the defacto complainant identified any of the accused persons and accordingly, they were all declared hostile. All the remaining witnesses included in the schedule were given up by the prosecution. Since there were no incriminating circumstances against any of the accused, they were not questioned under Section 313 Cr.P.C. It was in such circumstances that the accused who stood the trial were acquitted vide Annexure C judgment. 5. As already stated, there was no specific charge against the petitioner herein who is arrayed as the 8th accused in Crime No. 83 of 1994. The question, therefore, is whether the it will be in the interest of justice to put the petitioner to face trial in C.C. No. 204 of 2005. It is in this context that the learned counsel for the petitioner placed reliance on the decisions mentioned above. In the decision in Subran v. State of Kerala reported in (1993) 3 S.C.C. 32, all the six accused persons were Crl.M.C. No. 3751/2006 5 convicted with the aid of Section 149 I.P.C. by the trial court. The substantive offence framed in the said case was under Section 302 I.P.C. In appeal, the High Court acquitted two of the accused. The Honourable Apex Court after a careful consideration of the facts and circumstances of the case, held as follows: “An assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other know or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus only four accused could be said to have been the members of the assembly but such an assembly which comprises less than five members is not an unlawful assembly within the meaning of Section 141 I.P.C. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 I.P.C. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 I.P.C. cannot be recorded or sustained. The failure of the prosecution to show that th assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Sections 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Crl.M.C. No. 3751/2006 6 Section 149 IPC also.” In the decision Dhupa Chamar v. State of Bihar reported in (2002) 6 S.C.C. 506, the accused persons were charged under Sections 302 and 149 I.P.C. Out of the seven accused persons, three were acquitted of the charge under Sections 302 and 149 I.P.C. by the trial court. Accused Nos.3 and 4 were convicted under Section 302 read with Section 149 I.P.C. and accused Nos.1 and 2 were convicted under Section 302 I.P.C. In appeal, the High Court confirmed the judgment of the trial court with the only modification that the conviction of accused No.2 was converted to one under Section 302 read with Section 149 I.P.C. The Honourable Apex Court held that the trial court itself acquitted three of the accused and the number of accused persons having thus reduced to less than five, it could not be said that there was unlawful assembly and hence, they could not have been convicted with the aid of Section 149 I.P.C. In the said case, the Honourable Apex Court held thus: “............ We are of the opinion that in view of the fact that three accused persons referred to above were acquitted by the trial court itself of the charge under Sections 302/149 out of the seven accused persons and no other person is said to have participated in the occurrence as mentioned in the prosecution case and evidence, and as the number of accused persons becomes Crl.M.C. No. 3751/2006 7 less than five, there cannot be said to be any unlawful assembly, as such conviction of appellants 2 to 4 under Sections 302/149 becomes unwarranted.” 6. Annexure B would reveal that the petitioner was roped in as an accused with the aid of Section 149 I.P.C. In the light of Annexure C judgment, the number of accused persons have been reduced to two. At the most the said persons can be said to be members of an assembly, but not members of an unlawful assembly. For invoking Section 149 I.P.C., existence of an unlawful assembly is a necessary postulate. But, in this case, now the number of persons are less than five. Annexure C judgment would reveal that the prosecution had failed to show that the assembly was an unlawful one and most importantly, accused 2 to 5 against whom specific overt acts were alleged, were also acquitted vide Annexure C judgment. Had they been convicted, there would have been some purpose for putting the petitioner to face trial in C.C. No. 204 of 2005. 7. In the light of the above discussions, it can only be said that no useful purpose will be served by allowing criminal prosecution to continue against the petitioner/8th accused. Going by the decisions of the Honourable Apex Court mentioned supra, even if proceedings are permitted to be continued against the petitioner, it would only cause Crl.M.C. No. 3751/2006 8 wasting of precious judicial time. Therefore, permitting continuance of the proceedings against the petitioner would result in abuse of the process of the court. To avert such a situation, it is only proper to exercise the inherent jurisdiction under Section 482 of the Code of Criminal Procedure. Considering the fact that none of the accused persons in Crime No.83 of 1994 was convicted, as is obvious from Annexure C judgment, no conviction can be entered against the petitioner with the aid of Section 149 I.P.C. No other specific charge was framed against him alleging any specific overt act. In the result, the Crl.M.C. is allowed. Annexure D in so far as it relates to the petitioner and pending as C.C. No.204 of 2005 before the Chief Judicial Magistrate's Court, Thrissur is quashed. (C.T. RAVIKUMAR, JUDGE) sp/ Crl.M.C. No. 3751/2006 9 C.T. RAVIKUMAR, J. CRL. M.C. NO. 3751/2006 O R D E R 23rd March, 2009 Crl.M.C. No. 3751/2006 10