IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.MC.No. 2033 of 2009() ----------------------------------- SC.926/2005 OF SESSIONS COURT, PALAKKAD. .................... PETITIONER/ACCUSED NO.3 ----------------------------------------- JALEEL, AGED 33 YEARS, S/O.MOIDEEN KUTTY RESIDING AT CHUVATTUPADAM, PANNIYANKARA POST, VADAKKANCHERY, PALAKKAD DISTRICT. BY ADV. MR.R.O.MUHAMED SHEMEEM SMT.NASEEHA BEEGUM P.S. RESPONDENTS/COMPLAINANT --------------------------------------------- 1. CIRCLE INSPECTOR OF POLICE, VADAKKANCHERY POLICE STATION, PALAKKAD DISTRICT. 2. RAMAKRISHNAN, S/O.VELAPPAN, KALLAMPARAMBIL, PUTHUKODE, PUTHERIPADAM, PALAKKAD DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA. R1 & R3 BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2033 of 2009 -------------------------- ORDER Petitioner is the third accused in Crime No. 288/2002 Wadakkancherry Police Station. The case as against the petitioner is now pending as C.P.No. 107/2007 before Judicial First Class Magistrate's Court, Alathur. He was absconding when the case as against other accused was committed. As per Annexure-3 judgment in S.C.No.926/2005, Assistant Sessions Judge, Palakkad acquitted the other accused for offences under Sections 307, 326 and 120B read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that in the light of Annexure-3 judgment, acquitting the co-accused and finding that there is no conspiracy, petitioner cannot be convicted, even if he is to be tried. CRMC 2033/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3.Learned counsel appearing for the petitioner, relying on the findings in Annexure-3 judgment of Assistant Sessions Judge, vehemently argued that even if petitioner is to undergo trial, he cannot be convicted for the offences for which the other accused were tried and acquitted and when conspiracy is found against and there is no evidence for commission of offences under Sections 307 and 326 of India Penal Code, no purpose will be served by directing the petitioner to undergo trial and therefore, the case is to be quashed. 4. True, Annexure-3 judgment shows that on evidence let in by prosecution, when the co-accused were tried, it was found that there was no acceptable evidence to prove the conspiracy or that there was an attempt to cause death or causing any grievous hurt as alleged by prosecution. At the same time, petitioner was the driver involved in CRMC 2033/09 3 the incident. Though, under Annexure-3 judgment it was found that there was no evidence to prove that petitioner, pursuant to conspiracy, with intention to cause death to the rider of the motor bike, hit on the motor bike with the jeep driven by him, on the facts, I find it not a sufficient ground to quash the proceedings. 5. The question whether petitioner was rash and negligent in driving and by such driving caused hurt to PW9 examined in the earlier case is a matter which should, necessarily, to be considered by the court. In such circumstances, the case cannot be quashed as sought for. Petitioner is at liberty to raise all the contentions at the stage of hearing under Section 227 of Code of Criminal Procedure. 6. Learned counsel appearing for the petitioner submitted that there may be a direction to the Magistrate to consider the application for bail. CRMC 2033/09 4 7. When an absconding accused surrenders and files an application for bail, learned Magistrate is expected to pass orders on the application without delay. Learned Magistrate would definitely consider the circumstances stated by the petitioner while considering the application for bail. I find no reason to believe that Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that Magistrate will not act in accordance with law. In such circumstances, no direction is warranted. Petition is dismissed. 9th July, 2009 (M.Sasidharan Nambiar, Judge) tkv