IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3761 of 2008()
1. MUHAMMED ABDUL NISSAR,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SRI.K.M.FIROZ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :10/11/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 3761 of 2008
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Dated this the 10th day of November, 2008
O R D E R
The petitioner is the third accused in a prosecution for
offences punishable, inter alia, under Sections 326, 307 r/w. 149
I.P.C. Altogether there were 9 accused persons. All other eight
accused stood trial. The petitioner was not available for trial.
They have been found not guilty and acquitted. The case against
the petitioner has been split up and the proceedings in committal
is pending before the J.F.M.C., Kunnamangalam as L.P. No. 68
of 2004.
2. Eventhough there was a submission at the Bar that there
has been settlement of the disputes between the victim and the
petitioner, there is nothing produced before Court to substantiate
that assertion. Therefore the attempt that was made for securing
quashing of proceedings with the help of the dictum in Madan
Mohan Abbot v. State of Punjab (2008 (3) KLT 19) and
Nikil Merchant v. C.B.I. (2008 (3) KLT 769) cannot succeed.
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3. The learned counsel for the petitioner submits that the co-
accused having already been acquitted, the petitioner is entitled for
quashing of proceedings against him. The learned counsel builds up an
argument that all the co-accused having already been acquitted, the
petitioner cannot be found guilty of being a member of an unlawful
assembly. All the co-accused have been acquitted and there is no
contention that any other person was available to make the presence of
the petitioner culpable as a member of an unlawful assembly. The
learned counsel further submits that specific overt acts are alleged only
against accused 1 and 2. They have already been found not guilty and
acquitted. No specific allegation is raised against the petitioner. In
these circumstances the prosecution against the petitioner is liable to be
quashed. In as much as there is no allegation even, against the
petitioner of the commission of any overt act, the continuance of the
prosecution is without any merit or substance and would be an exercise
in futility. The petitioner cannot be found directly or vicariously liable
for any offence, urges the counsel. In these circumstances,
notwithstanding the dictum of the Full Bench in Moosa v. S.I. Of
Crl.M.C.No. 3761 of 2008
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Police (2006 (1) KLT 552), proceedings against the petitioner are
liable to be quashed, it is submitted.
4. Notice was given to the learned Prosecutor, who concedes that
no overt act whatsoever was alleged against the petitioner. The only
allegation against the petitioner is that he was a member of an unlawful
assembly. All the 8 co-accused (altogether there are nine accused
persons) having already been found not guilty and acquitted, the
petitioner cannot now be alleged to be a member of an unlawful
assembly. No specific allegation having been raised against the
petitioner, he cannot be held to be principally liable for any offence.
The offenders, against whom specific over acts were alleged, having
already been found not guilty, the petitioner cannot made liable
vicariously also. In these circumstances the proceedings against the
petitioner may be quashed, it is prayed.
5. In the facts and circumstances of this case, I find merit in the
contention of the learned counsel for the petitioner. In as much as
there is no specific allegation against the petitioner and in as much as
all the co-accused have already been acquitted, the petitioner cannot
Crl.M.C.No. 3761 of 2008
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be held liable for any principal act to attract culpable liability nor can
he be found vicariously guilty of any offence allegedly committed by
others.
6. In the result:
a) This Crl.M.C. is accordingly allowed.
b) The surviving prosecution against the petitioner in L.P. 68 of
2004 pending before the J.F.M.C.. Kunnamangalam is hereby quashed.
c) The learned Magistrate shall make necessary entries and close
the proceedings against the petitioner.
d) Needless to say, proceedings, if any, pending against the
petitioner and his sureties under Section 446 Cr.P.C. shall be disposed
of in accordance with law.
(R. BASANT)
Judge
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