EDAYAKAL MUTHUKOYA Vs. PATTAKKAL SAYED AHAMMED KOYA THANGAL

JUDGEMENT

(1.) The main challenge that arises in this appeal is that when a Magistrate releases an accused under Section 4 of the Probation of Offenders Act 1958, whether an appeal under section 377(1) of Code of Criminal Procedure is maintainable ? These appeals have been filed against the judgment of conviction of A1 and acquittal of A2 to A89 in C.C.7 of 1991 of Judicial First Class Magistrate, Androth. The first accused was convicted under Section 143 and 188 of Indian Penal Code ("IPC" in short) and released under Section 4 of the Probation of Offender's Act and acquitted him for offences section 144, 145, 147, 148, 332, 353 and 506(ii) read with 149 IPC. Accused 2 to 89 were acquitted by the learned Magistrate for offence punishable under Section 143, 144, 145, 147, 148, 188, 332, 353 and 506(ii) read with 149 IPC. Against that judgment Criminal Appeal 625 of 2001 has been preferred by the Administrator, Union territory, Lakshadweep under section 377 and 378(1) and (3) of the Code of Criminal Procedure (hereinafter referred to as the Code). Against the conviction under Section 143 and 188 I.P.C., first accused preferred Crl.A.1 of 2001 before Sessions Court, Kavarathy which was transferred to this court, and taken on file as Crl.A.1448 of 2003 and both appeals have been heard together. The respondents in Crl.A.625 of 2001 are the accused in C.C No.7 of 1991 of the trial court.

(2.) The accused were charge sheeted before the Judicial Magistrate of First Class, Androth in C.C.No.7 of 1991 under Section 143, 144, 145, 147, 148, 188, 332, 353, 506(ii) read with 149 IPC. The charge against the accused is that on 23.4.1990 at 13 hours, the accused in prosecution of the common object of committing riot armed with deadly weapons unlawfully assembled inside and outside the Juma Masjid, Androth in violation of the order promulgated by the Executive Magistrate empowered under section 144 of the Code to abstain from the Masjid attached to Darga at a distance of 15 metres. Violating the above direction of law, they remained in the Mosque and its premises and used criminal force against the police personnel deployed for duty and also deterred the executive Magistrate from discharging their duty and pelted wooden reapers, G.I pipes and stones and thereby committed offence. In this incident, Androth police registered a crime and after completing investigation, laid charge before Judicial First Class Magistrate, Androth. Accused No.89 is absconding, hence his case was split up.

(3.) During trial, prosecution examined PW1 to PW24 and marked Ext.P1 to P4 as documentary evidence. Material objects MO1 to MO28 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. Learned Magistrate acquitted A2 to A90 (except A89) and convicted the first accused under Section 188 and 143 I.P.C. and released under Section 4 of the Probation of Offenders Act. Being aggrieved by that, the 1st accused preferred Crl.A. 1 of 2001 of Sessions Court, Androth. The Administrator, Union territory also filed Crl.A. 625 of 2001 against the acquittal of the accused and for enhancement of sentence against A1.