IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 Crl.MC.No. 593 of 2010 -------------------------------- (C.C. NO. 93/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE NO.I, KANNUR) .............. PETITIONER/IST ACCUSED: ---------------------------------------- S.P.SHAMAL, AGED 31 YEARS, S/O.MR.AMEER, CITHARKANDY PUTHIYA PURAYIL HOUSE, PALLIKUNNU AMSOM, PODIKUNDU, KANNUR DISTRICT. BY ADV. MR.C.A.MAJEED. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, TOWN POLICE STATION, KANNUR BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.593 of 2010 -------------------------- ORDER Petitioner is the first accused in C.C.No. 93/2009 on the file of Judicial First Class Magistrate's Court-I, Kannur. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that though he was the first accused in C.C.No.254/2005, no summons was received by him as he was working abroad. Second respondent was tried and by Annexure-B judgment, he was acquitted of the offence under Section 52 read with Section 63 of Copy Right Act and was convicted only for the offence under Section 292 of Indian Penal Code and in view of the order of acquittal, petitioner cannot be convicted for the offence under Section 52 read with Section 63 of Copy Right Act, even if he is to be tried and in such circumstances, the case as against him is to be quashed. CRMC 593/10 2 2. As held by a Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), order of acquittal as against a co-accused cannot be relied upon to quash the proceedings as against an absconding accused under Section 482 of Code of Criminal Procedure. It can be looked into only to find out who are the parties to the judgment and whether the case has ended in conviction or acquittal. Therefore, based on Annexure-B judgment, petitioner is not entitled to get the case as against him quashed. 3. The question whether petitioner could be convicted or not is to be decided based on the evidence to be let in. Hence, the case cannot be quashed as sought for. It is up to the petitioner to surrender before the learned Magistrate and seek bail and if advised, claim discharge under Section 239 of Code of Criminal Procedure. 4. Learned counsel appearing for the petitioner then submitted that there may be a direction to the CRMC 593/10 3 Magistrate to release the petitioner on bail on the date of his surrender in view of the order of acquittal as against the co-accused. 5. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders on the application without delay. It is for the Magistrate to consider all these aspects and decide whether an absconding accused is to be released on bail or not. 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. Hence, no direction is warranted. Petition is disposed. 19th February, 2010 (M.Sasidharan Nambiar, Judge) tkv