IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.MC.No. 4731 of 2010() ------------------------------------ CC.242/2008 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): 4TH ACCUSED --------------------------------------------- M.K.MANZOOR,S/O.MOHAMMED KHASSIM, THOPPIL HOUSE,COLLEGE JUNCTION,NEDUMANGADU. BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------- 1. VINOY,S/O.KOCHUKUNJU,THUMPARAVILA VEEDU, CHATHANNOOR,KOLLAM. 2. STATE OF KERALA,REPRESENTED BY THE P.PROSECUTOR,OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4731 of 2010 -------------------------- ORDER Petitioner was the fourth accused in C.C.No. 543/2001 on the file of Additional Chief Judicial Magistrate's Court, Thiruvananthapuram. As he was absconding along with the seventh accused, case against them was split up and re-filed as C.C.No. 242/2008. Accused 1 to 3, 5, 6 and 8 to 10 were tried. By Annexure-I judgment, those accused were acquitted. Defacto complainant challenged the order of acquittal before Sessions Court, Thiruvananthapuram in Crl.R.P.No.97/2008. By Annexure-III order, revision was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure contending that when out of the ten accused, eight were already acquitted and the order of acquittal was confirmed in revision, no purpose will be served by directing the petitioner to undergo the ordeal of a trial and therefore, the CRMC 4731/10 2 case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioner is that in the light of the findings in Annexure-I judgment and Annexure-III order, even if petitioner is to be tried, there is no likelihood of any conviction at all and the trial would result only in unnecessary waste of valuable time of the court and therefore, the proceedings is to be quashed. 4. Learned Public Prosecutor pointed out that as held by the Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), based on an order of acquittal against a co-accused, the case against an absconding accused cannot be quashed. Though learned counsel appearing for the petitioner argued that in view of Annexure-I judgment and Annexure-III order, case against the petitioner cannot be successfully prosecuted, based CRMC 4731/10 3 on the judgment acquitting a co-accused, case against the petitioner, an absconding accused, cannot be quashed. Petitioner is entitled to raise all the contentions before the learned Magistrate and seek an order of discharge. 5. Learned counsel then submitted that presence of the petitioner may be dispensed with for the purpose of claiming discharge under Section 239 of Code of Criminal Procedure. 6. In the light of the order of acquittal against eight accused out of ten accused, if petitioner files an application for discharge under Section 239 of Code of Criminal Procedure and seeks permission for exemption, learned Magistrate not to insist for his presence for the purpose of claiming discharge under Section 239 of Code of Criminal Procedure. Petition is disposed. 2nd December, 2010 (M.Sasidharan Nambiar, Judge) tkv