IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 Crl.MC.No. 4420 of 2010(D) -------------------------------------- [CC.NO.721/1998 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR, CR.NO.174/97 OF PAYYANNUR POLICE STATION, KANNUR DISTRICT] .................... PETITIONER/ACCUSED NO.3: ------------------------------------------ K.P.JAFFAR, S/O.ISMAIL HAJI, KUNHUMANGALAM, THALIPARAMBU, KANNUR DISTRICT. BY ADV. SRI.P.M.HABEEB. RESPONDENT: ---------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.174 OF 1997 OF PAYYANNUR POLICE STATION). BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. -------------------------------------------------------- Crl.M.C No.4420 OF 2010 --------------------------------------------------------- Dated this the 11th day of November, 2010. O R D E R Petition is filed under Section 482 of Code of Criminal Procedure to quash C.C.No.575 of 2001 against the petitioner now pending as L.P No.127 of 2003, on the file of Judicial first Class Magistrate Court, Payyannur, contending that except petitioner and the first accused, the remaining eight accused were already acquitted after trial by Annexure-A1 judgment. It is contended that as seen in Annexure-A1, a compromise petition was filed before the learned Magistrate in that case stating that entire disputes were amicably settled and in such circumstances the case against the petitioner is also to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though Annexure A1 judgment shows that the de facto complainant and the injured therein reported settlement before the learned Magistrate, it does not show that the settlement is against all the accused or not against those accused who appeared in CC.721 of 1998 above. Therefore, based on that statement, the case would not be quashed. As held by the Full Bench of this Court in Moosa v. Sub Inspector of Police, Crl.M.C No.4420 OF 2010 2 (2006 (1) KLT 552 (F.B)) based on the judgment of acquittal of some of the accused an absconding accused is not entitled to get the case against him quashed. 4. Learned counsel then submitted that petitioner was out side India and hence could not appear in C.C.No.721 of 1998 and he has reached the native place consequent to the death of his mother and in such circumstances a direction may be issued to the learned Magistrate to consider the application filed by the petitioner for discharge under Section 239 of Code of Criminal Procedure, in view of settlement as well as the acquittal of the other co-accused. The petition is disposed of granting liberty to the petitioner to file an application for discharge under section 239 of Code of Criminal Procedure before the learned Magistrate. If such an application is filed, learned Magistrate shall consider it and pass appropriate order in accordance with law expeditiously. If the ptitioner surrenders and files an application, learned Magistrate is expected to pass orders in the application in accordance with law. I find no reason to believe that Magistrate is unaware of the decisions of this Court or the provisions of law or that he will not Crl.M.C No.4420 OF 2010 3 act in accordance with law. Hence no direction is warranted. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE mns