IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 Crl.MC.No. 4177 of 2009() -------------------------------------- LP.72/2007 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... (CRIME NO.334/2004 OF KOTTAKKAL POLICE STATION) PETITIONER(S): 9TH ACCUSED; ------------------------------------------------ SIDDIQUE @ MANU, AGED 26 YEARS, S/O.HAMZA, KUMPARAMBIL (H, FAROOQ NAGAR, KOTTAKKAL, KUTTIPURAM. BY ADVS. MR.C.KHALID, MR.T.P.SAJID. RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.4177 OF 2009 =========================== Dated this the 22nd day of January,2010 ORDER Petitioner was the original nineth accused in Crime 334/2004 of Kottakkal Police Station. As per the order in C.P.31/2006, the case as against twelve accused were committed after splitting the case as against the petitioner. Prosecution case is that 13 accused entered into a conspiracy and in furtherance of the conspiracy formed themselves into an unlawful assembly and with the common object of causing the death of Basheer to seek revenge and thereafter caused his death and thereby committed offences under sections 143, 147,148, 363, 342, 120B, and 302 read with section 149 of Indian Penal Code. Learned Sessions Judge, Manjeri took the case on file as S.C.207/2008 and after trial by Annexure 3 judgment those Crl.M.C.4177/2009 2 accused were acquitted except accused No.12 The case as against the petitioner is included in the long pending register as L.P.72/2007. This petition is filed under section 482 of the Code of Criminal Procedure, to quash the case pending against him contending that when the allegations against the petitioner is that he was one among the members of the unlawful assembly and was also one of the conspirators and when the remaining accused were already acquitted, no purpose will be served by directing the petitioner to undergo the ordeal of trial and hence the case is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner vehemently argued that when there is no allegation of any overt act as against the petitioner and the only case is that he was one among the conspirators and also one of the members of the unlawful assembly, when the other members Crl.M.C.4177/2009 3 of the unlawful assembly and the alleged co- conspirators were already acquitted, petitioner cannot be convicted, even if tried and therefore it is to be quashed. Reliance was placed on Annexure 3 judgment. 4. As rightly pointed by the learned Public Prosecutor as held by the Full Bench of this court in Moosa v. Sub Inspector Of Police (2006(1) KLT 552) the order of acquittal of the co-accused cannot be relied on to quash the case as against the absconding accused and it can be looked into only to find out who were all parties to that case. If that be the case, the case cannot be quashed as sought for based on Annexure 4. It is upto the petitioner to appear before the learned Magistrate and on committal seek an order of discharge from the Sessions Judge under section 227 of Code of Criminal Procedure. Learned counsel then submitted that there may be a direction to the learned Magistrate to release the petitioner on bail on the Crl.M.C.4177/2009 4 date of surrender. It is for the Magistrate to decide whether petitioner is to be released on bail or not. Petitioner is at liberty to bring all the facts and circumstances before the learned Magistrate at that time including the fact that he was originally released on bail. Learned Magistrate is to pass orders in the application for bail, if moved without any delay. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006