Kerala High Court
Rajan Pillai vs State Of Kerala on 22 May, 1988
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935
Crl.MC.No. 1332 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN CC.313/1988 of JUDICIAL 1ST CLASS MAGISTRATE
COURT-II, PATHANAMTHITTA
PETITIONER/ACCUSED:
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RAJAN PILLAI, AGED 46 YEARS,
S/O. RAMAKRISHNAN PILLA, MUDIVANACHARUVIL,
KIDANGANNOOR VILLAGE, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.M.T.SURESHKUMAR
SRI.V.V.RAJA
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SMT.S.HYMA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-03-2013,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AS
Crl.MC.No. 1332 of 2013
APPENDIX
PETITIONER(S)' EXHIBITS:
ANNEXURE A1- TRUE COPY OF THE FINAL REPORT DATED 22-5-1988 IN CHARGE
SHEET NO.57/88.
ANNEXURE A2- TRUE COPY OF THE JUDGMENT DATED 28-2-1991 IN C.C.NO. 313
OF 1998 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST
CLASS-II, PATHANAMTHITTA.
ANNEXURE A3- TRUE COPY OF THE DEPOSITIONS OF PW1 IN C.C.NO.313/88
DATED 18/4/1990.
ANNEXURE A4- TRUE COPY OF THE DEPOSITIONS OF PW2 IN C.C.NO.313/88
DATED 18/4/1997.
ANNEXURE A5- TRUE COPY OF THE DEPOSITIONS OF PW3 IN C.C.NO.313/88.
RESPONDENT(S)' EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
AS
C.T.RAVIKUMAR,J.
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Crl.M.C.No. 1332 of 2013
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Dated this the 25th day of March, 2013
O R D E R
The petitioner was the 4th accused in Crime No.30/1988 of Aranmula Police Station registered against the petitioner and 4 others alleging commission of offences under Sections 143, 447 and 427 r/w Section 149 of the Indian Penal Code. Annexure-A1 is the Final Report laid in the said crime and cognizance was taken thereon and it was taken on file as C.C.No.313/1988 on the files of the Court of the Judicial First Class Magistrate-II, Pathanamthitta. Earlier, the co-accused of the petitioner were tried in C.C.No.313/1988 and Annexure-A2 is the judgment whereby all of them were acquitted by the Court of the Judicial First Class Magistrate-II, Pathanamthitta. The petitioner was then absconding and as such, the case as against him was split up and re-filed as C.C.No.771/1991. Later, it was included in the list of the long pending cases with L.P.No.12/1994. This petition is filed seeking to quash Annexure- A1 Final Report and all further proceedings based thereon against Crl.M.C.No. 1332 of 2013 2 the petitioner in L.P.No.12/1994 pending before the Court of the Judicial First Class Magistrate-II, Pathananthitta.
2. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor.
3. It is obvious from Annexure-A2 judgment itself that the defacto complainant is no more. Essentially, the aforesaid prayers are founded on Annexure-A2 judgment of acquittal passed by the Court of the Judicial First Class Magistrate
-II, Pathanamthitta in the case of the co-accused of the petitioner. Generally, a judgment of acquittal in respect of co- accused cannot and will not act a bar for the subsequent trial of an absconding accused in the light of a Full Bench decision of this Court in Moosa V. Sub Inspector of Police reported in 2006(1) KLT 552 (F.B.) The Full Bench carved out only an exception to the law laid down thereunder. The exception is in a case where, upon the pronouncement of the judgment of acquittal of co- accused the very substratum of the prosecution case is lost. Therefore, the contention of the petitioner may have to be considered in the light of Annexure-A2 judgment to see whether Crl.M.C.No. 1332 of 2013 3 this case would fall within the exception carved out by the Full Bench.
4. In this case another aspect also has to be taken note of. As already noticed hereinbefore the petitioner and his co- accused were accused of commission of offences under Sections 143, 447 and 427 r/w Section 149 of the Indian Penal Code. Altogether there are only 5 accused in the aforesaid crime and out of the 5 accused 4 of them were already stood the trial and acquitted as per Annexure-A2 judgment. Annexure-A1 final report and Annexure-A2 judgment would reveal that prosecution has no case at all that apart from the 5 accused including the petitioner herein any other person had any involvement in the commission of the said alleged offences. In the contextual situation the decisions of the Honourable Apex Court in Amar Singh & Others C. State of Punjab reported in AIR 1987 SC 826 and Maiku & Others V. State of U.P. reported in AIR 1989 SC 67 assume relevance. Going by the aforesaid decisions of the Honourable Apex Court in case where as a result of a judgment of acquittal of co-accused in a particular case the number of the Crl.M.C.No. 1332 of 2013 4 surviving accused has been reduced below 5 the surviving accused cannot be convicted and sentenced on the ground being a member of the unlawful assembly if the prosecution got no case that apart from the surviving accused there are other identifiable persons who had involvement in the alleged commission of offences and they together with the surviving accused would constitute sufficient member to constitute an unlawful assembly. The simple reason that there cannot be an unlawful assembly of persons with less than 5 in terms of the provisions under Section 141 of the Code of Criminal Procedure. As already noticed hereinbefore the prosecution did not have a case that apart from the four accused persons including who were acquitted as per Annexure-A2 judgment and the petitioner herein anyone had any involvement in the commission of the aforesaid offence. When that be the position in the light of the aforesaid decisions of the Apex Court in Amar Singh's case (supra) and Maiku's case (supra) even if criminal proceedings are permitted to be continued against the petitioner, he cannot he convicted or sentenced under Sections 143 or 149, IPC. The petitioner and the Crl.M.C.No. 1332 of 2013 5 others were also accused of commission of offences under Sections 447 and 427 and evidently, there is no specific overt act alleged against the petitioner and he was implicated as an accused only with the help of Section 149, IPC. When the co- accused of the petitioners were already acquitted of all the charges against them including of the offences under Sections 447 and 427 in the absence of any specific allegations of overt act constituting the aforesaid offences against the petitioner and in the light of the aforesaid decisions of the Apex Court (supra) there is absolutely no chance at all for entering a conviction on and also for imposing sentence on the petitioner even if the criminal proceedings are allowed to be continued against him. When that be the case I am of the considered view that allowing continuance of criminal proceedings against the petitioner would result in abuse of process of court and would also result in shere wasting of the invaluable time of the court. In the decision in Gian Singh V. State of Punjab reported in 2012(4)KLT 108(SC) the Apex Court held that it is the duty of the High Courts to terminate the criminal proceedings which became absolutely Crl.M.C.No. 1332 of 2013 6 unnecessary. In the circumstances, Annexure-B judgment need not be looked in to for the purpose of considering the question as to whether the substratum of the prosecution case has been lost with its pronouncement. As I have already found that continuation of the proceedings in view of the aforesaid circumstances, as against the petitioner, has become absolutely unnecessary. In the circumstances, this Crl.M.C. is allowed. Annexuer-A1 Final Report laid in Crime No. 30/1988 of Aranmula Police Station and all further proceedings pursuant thereto pending against the petitioner in L.P.No.12/1994 in C.C.No.771/1991 before the Court of the Judicial First Class Magistrate-II, Pathanamthitta are hereby quashed.
C.T.RAVIKUMAR,JUDGE.
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