Dismissed

Shaji George v. State of Kerala

Kerala HC4 Nov 2019Crl.Rev.Pet/312/2017

Case brief

AI extract

What is this about?

This criminal revision petition challenged an order stopping proceedings against four accused in a public nuisance case. The court held that five or more persons are required for an unlawful assembly under IPC, but named accused can be charged alongside unidentified persons. Consequently, the order stopping proceedings was upheld. Petition is dismissed.

What did the court decide?

The criminal revision petition is dismissed. Proceedings in respect of the offences under Sections 143, 147 and 341 read with 149 IPC are allowed to continue.

Shaji George Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

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Crl.Rev.Pet.No.312 OF 2017

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AGAINST THE ORDER IN ST 119/2016 OF GRAMA NYAYALAYA, VADAVUCODE AT KOLENCHERY

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PETITIONERS/ACCUSED NO. 1 TO 4:

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1 SHAJI GEORGE S/O. LATE GEORGE, POLLAYIL HOUSE, PUTTUMANOOR, PUTHENCRUZ P.O.

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2 SANTHOSH

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S/O.SIVASANKARAN NAIR, MOHANAVILASAM VEEDU, MONIPPILLY KARA, THIRUVANIYOOR VILLAGE.

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3 BIJEESH

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S/O.NARAYANAN NAIR, CHEMMALA VEEDU, VARIKKOLI KARA, PUTHENCRUZ VILLAGE.

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4 MANOJ

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S/O.KANNAN, MANAKKEKKARA VEEDU, PINANMUNDA KARA, KUNNATHUNADU VILLAGE.

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BY ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL

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RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 SUB INSPECTOR OF POLICE PUTHENCRUZ POLICE STATION, PUTHENCRUZ P.O.682308.

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SMT M K PUSHPALATHA-PP

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-10-2019, THE COURT ON 04-11-2019 PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.312 OF 2017

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R. NARAYANA PISHARADI, J

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Crl.R.P No.312 of 2017

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Dated this the 04^th day of November, 2019

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O R D E R

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The revision petitioners are accused 1 to 4 in the case S.T No.119/2016 on the file of the Grama Nyayalaya, Vadavucode, Kolencherry.

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The prosecution case is that the petitioners, along with other unidentified persons, formed themselves into an unlawful assembly and wrongfully restrained CW1 to CW6, who were members of the Election Defacement Squad and uttered obscene words to the annoyance of CW1 to CW6 and caused obstruction to them in discharging their official duties. The offences alleged against the petitioners are under Sections 143,147,341,294(b) and 186 read with 149 IPC.

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The petitioners filed an application as Crl.M.P No.34/2016 in the court below to stop the proceedings against them under Section 258 Cr.P.C. Learned Magistrate partly allowed the aforesaid application

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as per the order dated 05.01.2017 and stopped the proceedings against the petitioners in respect of the offences punishable under

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Crl.Rev.Pet.No.312 OF 2017

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Sections 294(b) and 186 IPC. Learned Magistrate found that there are sufficient materials to read over particulars which constitute the offences punishable under Sections 143,147 and 341 read with 149 IPC against the petitioners. The aforesaid order is challenged in this revision petition.

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Heard the learned counsel for the petitioners and also the learned Public Prosecutor.

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Learned counsel for the petitioners contended that there are only four accused in the case and therefore, there was no unlawful assembly as contemplated under Section 141 IPC and therefore, the offences punishable under Sections 143 and 147 IPC will not lie against the petitioners. It is further contended that, when the offences punishable under Sections 143 and 147 IPC are not attracted, the offence punishable under Section 341 IPC alone also will not be attracted against the petitioners.

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There is no merit in the aforesaid contention. True, final report is filed only against four named persons. However, as rightly pointed out by the learned Magistrate in the impugned order, the prosecution case is that there were five other unidentified persons in the group of persons which constituted the unlawful assembly. Therefore, it cannot be found that the offences punishable under

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Crl.Rev.Pet.No.312 OF 2017

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Sections 143 and 147 IPC are not attracted.

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Section 141 I.P.C makes it clear that it is only where five or

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more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. But, less than five persons may be charged under Section 149 I.P.C, if the prosecution case is that the persons before the court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that, the persons before the court along with unidentified and unnamed assailants or members composed an unlawful assembly, those before the court can be convicted under Section 149 I.P.C though the unnamed and unidentified persons are not traced and charged (See Mohan Singh v. State of Punjab : AIR 1963 SC 174 ).

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In the aforesaid circumstances, there is no merit in the contention of the petitioners that the offences punishable under Sections 143 and 147 read with 149 IPC are not attracted against them. In view of the specific allegation that the petitioners wrongfully

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Crl.Rev.Pet.No.312 OF 2017

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restrained the officials of the Election Squad, the ingredients of an offence punishable under Section 341 IPC are also attracted. In such circumstances, I find no illegality or impropriety in the impugned order passed by the learned Magistrate declining to stop the proceedings against the petitioners in respect of the offences punishable under Sections 143,147 and 341 read with 149 IPC.

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No other contention is raised by the learned counsel for the revision petitioners.

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In the result, the revision petition is dismissed.

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Sd/- R. NARAYANA PISHARADI

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JUDGE

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lsn

Shaji George v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shaji George v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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