IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 Crl.MC.No. 759 of 2011() ------------------------ CC.190/1994 (REFILED AS CC.NO.119/99 AND AGAIN REFILED AS CC NO.172/2006) of JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR .................... PETITIONER(S): ------------------------- GEORGE, S/O. OUSEPH, AGED 43 YEARS, PADAYATTIL, PULIYANTHURUTH, PUTHENVELIKKARA, NORTH PARUR. BY ADVS. SRI.B.RAMACHANDRAN, SMT.K.B.REKHA. RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.759 of 2011 --------------------------------------- Dated this 10th day of March, 2011 ORDER Petitioner is 7th accused in Crime No.2 of 1993 of Puthenvelikkara Police Station and C.C.No.190 of 1994 of the Court of learned Judicial First Class Magistrate, North Paravur for offences punishable under Secs.143, 147 and 353 r/w Sec.149 of the Indian Penal Code. The first accused expired before commencement of the trial, it is submitted. Other accused were acquitted by Annexure-A3, judgment. At that time, petitioner was not available for trial since he was working abroad. Hence the case against petitioner was split up and refiled as C.C.No.119 of 1999. Petitioner seeks to quash proceeding against him on the strength of Annexure-A3, judgment contending that in the light of the finding entered by the learned Magistrate, there is no purpose in proceeding with trial of the case. Learned counsel submitted that having regard to the broad circumstances of the case and the fact that none of the independent witnesses had supported the prosecution, case against petitioner may be quashed. I have heard learned Public Prosecutor also. Crl.M.C.No.759 of 2011 -: 2 :- 2. Except for the purpose mentioned in Sec.43 of the Indian Evidence Act Annexure-A3, judgment is not relevant. This Court in Moosa v. Sub Inspector of Police (2006(1) KLT 552) (in paragraph 50) has stated so while considering the use of judgment in favour of some of the accused to quash proceeding against the absconding accused. It was held that the judgment rendered in the case of a co-accused and the reasoning contained therein or appreciation of the evidence are not matters to be taken into account for the purpose of granting relief to quash proceeding and thus bar the trial itself. There may however, be a case where the very substratum of the case is lost which may be an exception to the said rule. 3. I have gone through Annexure-A3, judgment to find whether substratum of the case of prosecution is lost. The case is that on 09.01.1993 at about 6.15p.m petitioner and others with intent to deter PWs.1 to 4, Excise officials from discharging their official duty blocked them from proceeding further by putting across an Autorikshaw in front of the jeep in which they were travelling. It is also alleged that accused 2 and 4 voluntarily caused hurt to CW1/PW1, the Excise official while the second accused threw away his spectacle. Crl.M.C.No.759 of 2011 -: 3 :- 4. Annexure-A3, judgment shows that Excise officials gave evidence regarding the incident and identified the assailants (who were in the box), but the independent witnesses cited by the prosecution did not support its version. Learned Magistrate found it unsafe to accept the evidence of PWs.1 to 3 as their version did not get support from the independent witnesses. It is not a case of the substratum of prosecution being lost by Annexure-A3, judgment. Learned Magistrate was not inclined to act upon the evidence of PWs.1 to 3, Excise Officials alone. That appreciation of the learned Magistrate cannot be made use of by the petitioner to quash proceeding against him. Having heard learned counsel and learned Public Prosecutor I do not find reason to quash proceeding against petitioner under Sec.482 of the Code of Criminal Procedure . 5. It is submitted by learned counsel that since petitioner is abroad, he may be granted permanent exemption. The High Court in T.G.N.Kumar Vs. State of Kerala (2011(1) KHC 142) has directed that the question whether exemption has to be granted or not must primarily be left to the discretion of the trial court and that no direction in that regard shall be issued by the superior court. But, having regard to the circumstances Crl.M.C.No.759 of 2011 -: 4 :- stated before me I make it clear that it is open to the petitioner to file appropriate application for permanent exemption provided of course his identity in the course of trial will not be disputed and an affidavit to that effect is filed by the petitioner in the trial court. If any such application is preferred learned Magistrate shall decide the same having regard to the observations made in the decision of the Supreme Court Baswaraj R. Patil Vs. State of Karnataka (2000(8) SCC 740). (THOMAS P JOSEPH, JUDGE) Sbna/-