VIPIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are accused Nos. 1 and 4 in Crime No. 622/2010 of Anthikkad Police Station registered alleging commission of offences punishable under Section 143, 147, 148, 294(b), 506(ii) and 427 r/w Section 149 of the Indian Penal Code. Annexure-A is the Final Report laid in the said crime. Cognizance was taken thereon and it was taken on file as C.C. No. 1726/2010 of the Court of Judicial First Class Magistrate-I Thrissur Since the petitioners were absconding the case as against them was split up and re-filed as C.C. No. 2917/2012. The trial as against the others except the petitioners were proceeded with and ultimately, as per Annexure-B judgment they were acquitted. This petition is filed seeking quashment of Annexure-A final report and all further proceedings against the petitioners in C.C. No. 2917/2012 on the files of the Court of the Judicial First Class Magistrate-II, Thrissur on the strength of Annexure-B and also Annexures C to E, the affidavits sworn in respectively by the respondents 2 to 4 in this case. I have heard the learned counsel for the petitioners, the learned counsel appearing for respondents 2 to 4 and the learned Public Prosecutor.

(2.) As noticed hereinbefore Annexure-B is the judgment of acquittal in respect of the accused in Crime No. 622/2010 who faced the trail in C.C. No. 1427/2010 who are the co-accused of the petitioners. There cannot be any dispute with respect to the position that a judgment of acquittal in respect of a co-accused cannot be a bar for the subsequent trial of the absconding accused in the light of the Full Bench decision of this Court in Moosa v. Sub Inspector of Police, 2006 1 KerLT 552 . In the said decision the Full Bench carved out an exception to the said law laid in that decision. The exception being a case where the substratum of the very prosecution case is lost with the pronouncement of the concerned judgment of acquittal. Having perused Annexure-B judgment I am of the considered view that the petitioners cannot be heard to contend that with the pronouncement of Annexure-B judgment the very substratum of the prosecution case is lost. If that be so, in the light of the judgment in Moosa's case 3 that cannot be a bar for their trial merely because their co-accused were acquitted as per Annexure-B.

(3.) However, Annexure-B judgment assumes relevance in another context obtained in the light of the decisions of the Honourable Apex Court in Amar Singh & Others v. State of Punjab, 1987 AIR(SC) 826 , Maiku & Others v. State of U.P., 1989 AIR(SC) 67 . A consideration of Annexure-B in the light of the aforesaid decisions becomes inevitable in view of the fact that with the pronouncement of Annexure-B judgment acquittal admittedly, the number of surviving accused in Crime No. 622/2010 of Anthikkad Police Station has been reduced below 5. The impact of the reduction of the surviving accused in a crime by a judgment of acquittal has been elaborately considered by the Hon'ble Apex Court in the aforesaid decisions. When the number of the surviving accused is brought below 5 with the pronouncement of a judgment acquittal of some of the accused in the concerned crime there cannot be an unlawful assemblage of persons for the purpose of Section 141, IPC. In otherwords, when the number is reduced below 5 the surviving accused cannot be convicted or sentenced on the ground they being a member of an unlawful assembly. In that view of the matter, in the light of Annexure-B whereby the number of accused persons have been reduced below 5, there cannot be any question of convicting and sentencing of the petitioners, the surviving accused persons in the aforesaid crime under Sections 143, 147, 148 and 149, IPC as the prosecution did not have a case that apart from the persons named as accused in Annexure-4 final report viz., the petitioners herein and others who stood the trial in C.C. No. 1726/2010, some others were also acted in pursuance of a criminal conspiracy with the petitioner and they, together, would constitute 5 or more. Annexure-A would reveal that the petitioners are accused of commission of offences under Sections 294(b), 506(ii) and 427, IPC as well. The offence under Section 427 of the Indian Penal Code is compoundable in terms of the provisions under Section 320, Cr.P.C. True that being non compoundable offences, offences under Sections 294(b) and 506(ii) cannot be compounded. However, in the light of the decision of the Honourable Apex Court in B.S. Joshi v. State of Haryana, 2003 2 KerLT 1062 . The fact that the concerned accused are also accused of commission of non-compoundable offences, by itself, cannot be a ground for declining exercise of the inherent power under Section 482, Cr.P.C. if the case is otherwise a fit case for its invocation. In the context of the case the decision of the Apex Court in Gian Singh v. State of Punjab, 2012 4 KerLT 108 also assumes relevance. Going by the said decision criminal proceedings which became absolutely unnecessary shall not be permitted to be continued in the interest of justice. In this case Annexures C to E are the affidavits sworn in respectively by respondents 2 to 4, the persons who sustained injuries and who were criminally intimidated and on whom obscene words are uttered and who sustained loss on account of the alleged action on the part of the petitioners. They have categorically stated in Annexures C to E the entire lis that led to the registration of the aforesaid crime has been settled amicably with the petitioners. It is also stated therein that in the light of the settlement they do not want to prosecute the petitioners any further and they got no objection in quashing Annexure-A final report and all further proceedings pursuant thereto and C.C. No. 2917/12, now, pending on the files of the Court of the Judicial First Class Magistrate-II, Thrissur. In the light of the aforesaid circumstances I am of the considered view that compelling continuance of criminal proceedings against the petitioners would be a futility and would result in sheer wasting of invaluable time of the court. In the said circumstances, in the light of the decisions of the Hon'ble Apex Court referred supra, I am of the view that the entire criminal proceedings against the petitioners have to be terminated, in the interest of justice. Resultantly, this Criminal M.C. is allowed. Annexure-A Final Report laid in Crime No. 622/2010 of Anthikkad Police Station to the extent it pertains to the petitioners and all further proceedings pursuant thereto against the petitioners in C.C. No. 2917/2012 on the tiles of the court of the Judicial First Class Magistrate-II, Thrissur are hereby quashed.