JALALU Vs. RAJAN

JUDGEMENT

(1.) Petitioner is the first accused in crime No. 139 of 2003 of Edasserry Police Station and the committal proceedings against him in C.P. No. 19 of 2005 was pending before the Court of Judicial First Class Magistrate, Vatakara as L.P. No. 36 of 2008. Altogether, there are seven accused in the said crime. The accusation against the petitioner and his co-accused is one of commission of offences under sections 143, 147, 341, 323 and 308 read with section 149 of the Indian Penal Code. Five among the seven accused stood the trial in S.C. No. 832 of 2003 before the Court of Additional District and Sessions Judge, Vatakara and as per Annexure-2, they were acquitted. The prayer of the petitioner in this petition is to quash Annexure-1 final report and all further proceedings against him pending before the Court of Judicial First Class Magistrate, Vatakara. Essentially, the said prayer is made on the strength of Annexure-2 judgment and also Annexure-3 affidavit sworn in by the de facto complainant. In the light of the decision of this Court in Moosa v. Sub Inspector of Police, 2006 1 KerLT 552, the judgment of acquittal of a co-accused will not and cannot bar subsequent trial of the absconding accused. It was further held therein that judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting the relief of quashment of proceedings moved by the absconding accused. Having held thus, the Full Bench carved out an exception and the relevant paragraph reads as hereunder:-

(2.) I have heard the learned counsel for the petitioner, learned counsel appearing for the first respondent and also the learned Public Prosecutor. The learned counsel for the petitioner submitted that the substratum of the prosecution case is lost with the judgment of acquittal as per Annexure-2 and therefore, Moosa's decision would virtually support the case and claim of the petitioner that the proceedings against him are liable to be quashed. To buttress the said contention, the learned counsel drew my attention to paragraph 6 of Annexure-2 judgment The trial court carefully considered evidence including the oral testimony of PW 1, the de facto complainant who is the first respondent herein. It was found that he had sustained only minor injuries. The evidence of PW 1 was to the effect that he did not know who had actually inflicted the injuries and that he had not identified the assailants in the night. It was further deposed by him that he had lodged Ext. P1 complaint based on hearsay against the accused persons. Annexure-3 is the affidavit filed by the first respondent/defacto complainant in this case. In the affidavit also, he maintained the same stand that he could not identify any of the assailants. The affidavit would create an incongruous situation inasmuch as the first respondent who deposed before the court that he had not seen any of the assailants in the night now says that he has settled the lis that led to the registration of the crime against the petitioner and that he had obtained compensation. In such circumstances, normally, this Court would decline to accept the affidavit to terminate the proceedings against the petitioner relying on Annexure-3 and the submissions made on behalf of the first respondent. But, certain other aspects persuaded me to have a deeper consideration of the matter. Paragraph 4 of Annexure-2 judgment carries the discussion regarding the offence alleged to have been committed by the accused under section 308 of the Indian Penal Code. The learned Sessions Judge, on scanning the entire prosecution records, entertained a strong doubt regarding the involvement of offence under section 308 IPC. It was found that the de facto complainant had sustained only a very simple abrasion with contusion over the root of his nose and that he had been under treatment only for a short period. Taking note of such circumstances, it was further observed that a mere case of assault was magnified as a case under section 308 IPC. Those accused who stood the trial were found not guilty under all the alleged offences, including the one under section 308 IPC. Despite such observations followed by an acquittal, admittedly, no appeal has been preferred against Annexure-2 judgment. Evidently, the other offences mainly alleged against the petitioner herein under sections 341 and 323 are compoundable in terms of section 320 Cr.P.C. True that there is allegation of commission of offences under sections 143, 147 and 149, as well against the petitioner and obviously, they are non-compoundable offences.

(3.) As already noticed, five among the seven accused who were tried in S.C. No. 832 of 2003 were already acquitted as per Annexure-2 judgment. Going by the definition of the expression unlawful assembly in section 141, an assembly of less than five cannot be an unlawful assembly within the meaning of section 141 Cr.P.C. and therefore, in the light of Annexure-2 judgment, the remaining number of accused when reduced to two, cannot form the basis of the offence with the aid of section 149, IPC. There is absolutely no case for the prosecution that apart from those acquitted persons and the two others, including the petitioner, some more persons who would constitute five or more along with those two including the petitioner, had participated in the commission of the offences pursuant to a common unlawful object. The meaning of the word 'object' employed in section 141 IPC means and can only mean the purpose or design to do a thing aimed at and therefore, to bring an assemblage of men within the definition of unlawful assembly a common object to commit one of the five alleged objects specified in section 141 IPC common to at least five persons must be established. That apart, if the object of the assembly is not unlawful, their act cannot attract section 141 I.P.C. The Hon'ble Supreme Court in the decision in Maiku v. State of U.P., 1989 AIR(SC) 67 held that if the object of the assembly is not unlawful, their act cannot attract section 141 IPC and when such be the case, the persons forming the assembly cannot be convicted under sections 143, 147 or 149. When as per Annexure-2 judgment, five among the seven accused were found not guilty under sections 143, 147 and 149 and the regaining accused were reduced to two, there can be no question of their forming an unlawful assembly and no unlawful common object can also be attributed on them as members of an unlawful assembly. In the context of the case, it is relevant to refer to the decision of the Hon'ble Supreme Court in Amar Singh v. State of Punjab, 1987 AIR(SC) 826. In that case before the Hon'ble Apex Court seven persons were charged for offence punishable under section 149 IPC, as in this case. Out of the seven, three were acquitted. In the circumstances, the Apex Court held that the remaining accused cannot form an unlawful assembly within the meaning of section 141 and therefore, they cannot form the basis of an offence with the aid of section 149 IPC. In view of the aforesaid decisions of the Hon'ble Apex Court, there cannot be any question of conviction of the petitioner as a member of an unlawful assembly under the aforesaid sections even if continuance of proceedings against the petitioner is permitted. Though there is scope for conviction of the petitioner/first accused under sections 341 and 323 in case of continuation of proceedings based on Annexure-1 Final Report it is to be noted that the offence under those sections are compoundable in terms of the provisions under section 320 Cr.P.C. Admittedly, the de facto complainant is the person on whom hurt was caused and who was restrained and therefore, he is competent to compound those offences in view of the provisions under section 320 Cr.P.C. Thus, in view of the position obtained in this case, compelling continuation of proceedings against the petitioner is a futility and the chance of conviction of the petitioner is very bleak. An overall consideration of the entire circumstances and position by law, as extracted earlier, would reveal that the proceedings now pending against the petitioner has become unnecessary. In the light of the decision of the Hon'ble Supreme Court in Gian Singh v. State of Punjab, 2012 4 KerLT 108 , it is the bounden duty of this Court to terminate proceedings that became absolutely unnecessary. In such circumstances, allowing continuation of the proceedings against the petitioner would not be in interest of justice and abuse of process of court inasmuch as it would only result in sheer waste of the invaluable time of the court. In the totality of the circumstances obtained as above, I am of the view that the proceedings against the petitioner is liable to be quashed by invoking the inherent power under section 482 Cr.P.C.