Dany Jones and Jomon vs State of Kerala

P.S. Gopinathan, J.—Petition u/s 482 of the Code of Criminal Procedure.

Petitioners are accused in S.C. 731/2009 on the file of the Assistant Sessions Judge, Chengannur. The Circle Inspector of Police, Chengannur, filed Annexure I final report accusing offence u/s 395 IPC against the petitioners with an allegation that the petitioners, along with four others, at 19.15 hours on 3.12.2006 committed decoity and a bus bearing No. KL-4/N 9563 was taken away by threat and force from the possession of the defacto complainant. Seeking an order to discharge the petitioners, they filed a petition as Crl. M.P. 47/2011. By the impugned order dated 3.3.2011, the learned Assistant Sessions Judge dismissed the petition. Assailing the same, this petition is filed. Today it is submitted that the first petitioner is no more. As the first petitioner died even before facing the trial, the charge as against him would stand abated.

I have heard Advocate Sri. C.S. Manu, the learned Counsel appearing for the second petitioner and the learned Government Pleader. Perused the records including Annexure A2. Going by the allegations in Annexure I final report, I find that though four of the assailants could not be identified, prima facie there are sufficient averments to send the petitioners for trial for offence u/s 395 IPC. The persuasive argument that was advanced by the learned Counsel for the petitioner is that in the statement of the charge witness No. 1 and 2, there is no mention about the number of assailants and only the petitioners were identified. Therefore, according to the learned Counsel, there is nothing on record to show that five or more persons were involved so as to send the petitioners for trial for offence u/s 395 IPC. Going through the statement of the other witnesses, it appears that there are allegations that more than five persons were in the group. Therefore, I find that the learned Assistant Sessions Judge was justified in rejecting the plea for discharge. In the event, it is revealed in evidence that number of assailants is lesser than five, only robbery is made out. That is a matter to be decided after the trial and it is not possible to decide in a petition u/s 482 Cr. P.C. This petition is devoid of merits.

In the result, this petition is dismissed without prejudice to the defence of the second petitioner.