IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.MC.No. 1355 of 2010(D) -------------------------------- (CC.559/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI) .................... PETITIONER(S): ACCUSED ------------------------------ 1. K.PRATHEEP KUMAR, AGED 41, S/O PRABAKARA MENON, BARATHI NIVAS, PARUTHUR P.O., MUDAPPAKAD, PALLIPURAM. 2. P.M.DHEEPAK, AGED 35, S/O MOHANDAS, PANIKKASSERY VEEDU, NJHANGATTIRI, TRITHALA. 3. T.MANIKANDAN, AGED 38, S/O MAKKUNNI, THACHOTHU VEEDU, NJHANGATTIRI, TRITHALA. BY ADVS. SRI.VIJU ABRAHAM SRI.DOMINIC JOHNSON RESPONDENT(S): STATE ---------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1355 of 2010 -------------------------- ORDER Petitioners were accused 3 to 5 in C.C.No. 771/2003 on the file of Judicial First Class Magistrate's Court, Pattambi. As they were absconding, accused 1 and 2 were tried, after re- filing the case against the petitioners as C.C.No. 559/2006. By Annexure-III judgment, accused 1 and 2 were acquitted. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings against the petitioners contending that in view of Annexure-III judgment, even if petitioners are to be tried, there is no likelihood of a successful prosecution. 2.Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel, relying on the findings in Annexure-III judgment, is that no purpose will be served by directing the petitioners CRMC 1355/10 2 to undergo the ordeal of a trial, in the light of the evidence already recorded in the case. PW1, a police constable, when examined, deposed that he cannot identify the persons who proclaimed that the vehicle cannot be taken and he cannot say what those accused have stated. In such circumstances, no purpose will be served by examining the witnesses again. It is also submitted that CWs 1 and 6 to 8 were not examined, in spite of coercive steps and learned Magistrate was compelled to dispense with their examination, as they were not produced before the Magistrate. It is, therefore, argued that the case is to be quashed. 4. As held by the Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), the judgment, acquitting a co-accused, cannot be looked into for quashing the proceedings as against the absconding accused. Moreover, Annexure- III judgment shows that CWs 1 and 6 to 8, the material witnesses, were not examined in that case. CRMC 1355/10 3 True, it is for the reason that in spite of coercive steps, they were not produced. But, that cannot be a ground to quash the case as against the petitioners. It is for the learned Magistrate to examine those witnesses, when the absconding accused are tried. In such circumstances, granting liberty to the petitioners to raise all the contentions raised herein before the learned Magistrate, this petition is dismissed. 13th September, 2010 (M.Sasidharan Nambiar, Judge) tkv