IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Crl.MC.No. 202 of 2008() ------------------------ SC.426/2002 of ADDL. DIST. & SESSIONS COURT, (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA CP.120/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... PETITIONER: 3RD ACCUSED ----------------------- ANSARI, S/O.SAITHA MUHAMMED, KUZHIPURAYIDATHIL VEEDU, KUMBAZHA MURI, KULASEKHARAPETTA, PATHANAMTHITTA. BY ADV. SRI.S.MUHAMMED HANEEFF SRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENTS: COMPLAINANT/STATE ------------------------------ 1. STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, PATHANAMTHITTA (IN CRIME NO.519 OF 2001 OF PATHANAMTHITTA POLICE STATION), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. UDAYAKUMAR.P.V., S/O.VASUDEVAN UNNITHAN, PADINCHARE MADATHIL, THONDUMONKARA, KUMBAZHA P.O., PATHANAMTHITTA. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. M.C. 202 of 2008 * * * * * * * * * * * * * * * * * * Dated: 17-01-2008 ORDER Petitioner who was the 3rd accused in Crime No.519 of 2001 of Pathanamthitta Police Station seeks to quash the proceedings in L.P. 25 of 2005 on the file of the Addl. Sessions Court (Adhoc) Fast Track court-II, Pathanamthitta which arose from C.P. 120 of 2001 on the file of the J.F.C.M. -I, Pathanamthitta. 2. The contention of the petitioner is that apart from the fact that the co-accused in the case have been acquitted after trial in S.C. 426 of 2002 as per Annexure A1 judgment dated 19-12-2005 of the very same Addl. Sessions Court, even going by the allegations in the complaint an offence punishable under Sec. 308 is not made out and the de facto complainant has filed an affidavit to the effect that the dispute has subsequently been settled and he no any subsisting grievance in the matter. The counsel for the petitioner placed strong reliance on the decision in B.S. Joshy v State of Haryana [AIR 2003 SC 1386) to contend for the position that in an appropriate cases as the present, the power under Sec. 482 Cr.P.C. can be invoked to quash the proceedings even if cognizance is taken Crl. M.C. 202 of 2008 -:2:- for a non-compoundable offence. 3. The occurrence took place in the year 2001 and the petitioner did not face trial as he was absconding. It is true that the co-accused in the case have been acquitted after trial . In view of the decision of this court in Moosa v. Sub Inspector - 2006 (1) KLT 552 acquittal of the co-accused cannot be a circumstance to quash the proceedings against the petitioner who was absconding. B.S. Joshi was a case involving a matrimonial dispute. In order to restore matrimonial peace and harmony, the Apex Court had held that the proceedings could be quashed if there was a settlement of the dispute between the marital partners. But the said decision cannot be pressed into service for a person like this for quashing the proceedings involving non-compoundable offences. His remedy is to surrender before the committal court and have the case committed to the Sessions Court and raise all his contentions during the preliminary hearing under Sec. 227 Cr.P.C. before the Sessions Court after committal. I place on record the submission made by the learned counsel for the petitioner that since the petitioner has obtained copies of all the prosecution records, the committal Magistrate need not comply with Sec. 207 Cr.P.C. Accordingly, if the petitioner surrenders before the J.F.C.M.I, Pathanamthitta and files an Crl. M.C. 202 of 2008 -:3:- application for regular bail within two weeks from today, the same shall be considered and disposed of preferably on the same date on which it is filed after examining the explanation , if any, offered by the petitioner for his previous non-appearance and also after considering the fact that the co-accused in this case have been acquitted after trial. On the date of the surrender of the petitioner itself, the Magistrate shall commit the case to the court of Session under intimation to the Public Prosecutor. The Sessions Court shall also take cognizance of the offences and either himself conduct preliminary hearing under Sec. 227 Cr.P.C. or make over the case to an Addl. Sessions Court who shall give the petitioner an opportunity of being heard during the preliminary hearing under Sec. 227 Cr.P.C. The petitioner is entitled to raise all his contentions before that Court during the preliminary hearing under Sec. 227 Cr.P.C. This Crl.M.C. is disposed of as above. Sd/- V. RAMKUMAR, (JUDGE) ani. /true copy/ Crl. M.C. 202 of 2008 -:4:-