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Judgment
Thomas P. Joseph, J.—Petitioners are accused 2 and 3 in Crime No. 409 of 2009 of Kalady Police Station for offence punishable u/s 401 of the Indian Penal Code (for short, "the IPC"). Case is that on 14.04.2009 at about 1.30 p.m Petitioners were found in the company of the first accused who is a DC of Pala Police Station, on seeing the police party all of them ran away and they were chased and apprehended. Annexure-A1 is the final report submitted by the Investigating Officer against Petitioners and the first accused. Learned Counsel submitted that Petitioners are not involved in any other case and there is no material on record to show that Petitioners are associated with the first accused who is said to be a DC of Pala Police Station. It is also the submission of Petitioners that they are engaged in collecting scrap. Learned Public Prosecutor submitted that there are materials to show that Petitioners are associated with first accused and are liable for offence under Sec.401 of the IPC. It is contended that it is a matter of evidence whether Petitioners are actually involved in the incident or not.
u/s 401 of the IPC, whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery shall be punished with imprisonment referred to therein. The ingredients of offences punishable u/s 401 of the IPC are that there must be in existence of a gang of persons, the gang should be associated for habitually committing theft or robbery and the accused should belong to that gang. The question whether Petitioners had associated with the first accused for the purpose of habitually committing theft or robbery is a matter for evidence and proper inference to be drawn therefrom. In the circumstance the request to quash proceeding cannot stand.
This criminal miscellaneous case is disposed of without prejudice to the right of Petitioners to raise appropriate defence before the learned Magistrate.