Abdul Salam K.A v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 8TH DAY OF APRIL 2013/18TH CHAITHRA 1935 Crl.MC.No. 1564 of 2013 () --------------------------CC.433/2012 of C.J.M.,KASARAGOD CRIME NO. 677/2006 OF KASARAGOD POLICE STATION PETITIONER/ACCUSED NO.3: --------------------------------- ABDUL SALAM K.A, AGED 32 YEARS S/O.ABDULLA K.A., RESIDING AT KALLAKATTA, DELAMPADY MULIYAR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADVS.SRI.M.SASINDRAN SRI.A.ARUNKUMAR RESPONDENTS/DEFACTO COMPLAINANTS/STATE : ------------------------------------------------------- 1.STATE REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031. - 2.AHAMMED KAMIL P.M., AGED 28 YEARS S/O.MAHAMOOD, ZEENATH NAGAR, BANGODE THALANGARA VILLAGE, KASARAGOD TALUK-671 121. - 3.AHAMMED NAVAS , AGED 28 YEARS S/O.C.H.MUHAMMED KUNHI, KASABA, KASARAGOD-671 121. - 4.SHIHABUDHEEN N.A., AGED 26 YEARS S/O. ABOOBACKER, BAKERY HOUSE, NAINMARMOOLA VIDYA NAGAR, KASARAGOD DISTRICT-671 121. R1 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1564 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------- ANNEXURE AI : A TRUE COPY OF THE FIR IN CRIME NO.677/2006 OF KASARAGOD POLICE STATION. ANNEXURE AII: A TRUE COPY OF THE FINAL REPORT IN CRIME NO.677/2006 OF THE KASARAGOD POLICE STATION. ANNEXURE AIII:A TRUE COPY OF THE JUDGMENT DTD.5.2.2008 IN CC.NO.435/2007. RESPONDENT(S)' EXHIBITS:NIL --------------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J.** **========================== CRL.M.C. No.1564 OF 2013 ==========================** Dated this the 8[th] day of April, 2013 ## **ORDER** Petitioner is the third accused in C.C.No.433 of 2012 on the files of the Court of Chief Judicial Magistrate, Kasaragod arising from crime No.677 of 2006 of Kasaragod Police Station. Annexure-AII is the final report laid in the said crime. Cognizance was taken thereon and the case was taken on file originally as C.C.No.435 of 2012 by the Chief Judicial Magistrate, Kasaragode. Since the petitioner was absconding, the case against him was split up and ultimately, it is now re-filed as C.C.No.433 of 2012 and pending before that Court. The allegation against the petitioner and his co-accused is one of commission of offences under sections 143, 147, 148, 341, 323 and 324 read with section 149 of the Indian Penal Code. The co-accused of the petitioner stood the trial before the Chief Judicial Magistrate, Kasaragode in C.C.No.435 of 2007 and they were acquitted as per Annexure-AIII judgment. This petition has been filed in the said **Crl.M.C.1564/13** 2 circumstances with the prayer to quash Annexure-AII final report laid in crime No.677 of 2006 of Kasaragod Police Station and all further proceedings in C.C.No.433 of 2012 pending against the petitioner before the Chief Judicial Magistrate, Kasaragode. 2. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor. The petitioner's contention is that the proceedings pending against him in C.C.No.433 of 2012 on the files of the Court of Chief Judicial Magistrate, Kasaragode are liable to be quashed in the light of Annexure-AIII judgment. I do not think that the said contention could be upheld in the light of the Full Bench decision of this Court in **Moosa v. Sub Inspector of Police** reported in **2006(1) KLT 552.** The only exception carved out by the Full Bench in that decision is in respect of a case where the very substratum of the prosecution case is lost with the pronouncement of judgment of acquittal in respect of the co-accused in the very case. The dictum laid down by the Full Bench is that a judgment of acquittal of a co-accused would not and could not act as a bar for **Crl.M.C.1564/13** 3 subsequent trial of an absconding accused. The petitioner has failed in his bid to establish that with the pronouncement of Annexure-III judgment, the substratum of the prosecution case is lost. On scanning Annexure-AIII judgment, I ween that the exception carved out in paragraph 50 of **Moosa** 's case is inapplicable in the case on hand and as such, the petitioner is entitled to seek for quashment of the entire proceedings against him in the light of Annexure-AIII. However, Annexure-AIII assumes relevance in another context. Evidently, the allegation against the petitioner and his co-accused in Annexure-AII final report is that in pursuance of their common object, they have committed the aforesaid offences. There is no case for the prosecution that from the nine accused including the petitioner, any other person had involved in the commission of the aforesaid offences. Obviously, with the pronouncement of Annexure-AIII judgment of acquittal of the co-accused of the petitioner, the number of surviving accused has been brought below 5 and in fact, petitioner is the sole surviving accused in the said crime. There cannot be any dispute with respect to the fact that there cannot be any unlawful assembly of persons with **Crl.M.C.1564/13** 4 less than five persons. The impact of the judgment of acquittal reducing the number of surviving accused below five has been considered by the Hon’ble Apex Court in the decision in **Amar Singh and others v. State of Punjab (AIR 1987 SC 826)** and in **Maiku and others v. State of U.P (AIR 1989 SC 67).** The fact that with the pronouncement of Annexure-AIII judgment, the number of surviving accused has been reduced below five has not been disputed by the prosecution. In such circumstances, there is no question of convicting and sentencing the petitioner under sections 143, 147, 148 and 149. True that the petitioner is also accused for commission of offences under sections 341, 324 and 323. In the light of the provisions under section 320 Cr.P.C, the offences under sections 341 and 323 are compoundable against the petitioner. The alleged incident occurred on 4.10.2006 and evidently, as on that date, the offence under section 324 IPC was compoundable under section 320 Cr.P.C. A scanning of Annexure-AII would reveal that no specific overt act is alleged against the petitioner. Evidently, he was implicated with the help of section 149 Cr.P.C. True that there is an allegation to the effect that **Crl.M.C.1564/13** 5 the petitioner and accused 4 to 9 unleashed attack on CWs 1 to 3. Annexure-AIII would reveal that accused 4 to 9 were acquitted of the said blame. Being the sole surviving accused, in the circumstances expatiated and in the light of **Amar Singh's** case (supra) and **Maiku's** case (supra) the petitioner cannot be convicted and sentenced on the ground of being a member of an unlawful assembly. In the circumstances obtained in this case I am of the considered view that no fruitful purpose could be served by sending the petitioner for trial and in fact, any such action would be a wasteful exercise. This is a fit case for invocation of the inherent power under section 482 Cr.P.C. In the result, this Crl.M.C is allowed. Annexure-AII final report laid in crime No.677 of 2006 of Kasaragod Police Station and all further proceedings pending against the petitioner in C.C.No.433 of 2012 on the files of the Court of Chief Judicial Magistrate, Kasaragode are hereby quashed. ## **C.T. RAVIKUMAR (JUDGE)** ## **spc/** **Crl.M.C.1564/13** 6 **C.T. RAVIKUMAR, J.** **Crl.M.C.1564/13** 7 **JUDGMENT September, 2010**