IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 1821 of 2009() ------------------------- SC.1511/2006 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM .................... L.P.NO.136/09 IN C.P.NO.28/06 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, KARUNAGAPPALLY) ........ PETITIONER(S): 2ND ACCUSED: ------------------------------------------------ SOMARAJAN, S/O.VASUDEVAN, PUTHENPURAYIL VEEDU, PRAYAR THEKKUM MURI, CLAPPANA, OCHIRA, KARUNAGAPPALLY. BY ADVS. MR.T.GOPALAKRISHNAN, MR.K.V.AJAI KUMAR. RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, OCHIRA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1821 OF 2009 ------------------------------------------ Dated 3rd June 2009 O R D E R Petitioner is the second accused in L.P.136/2009 in C.P.28/2006 before Judicial First Class Magistrate, Karunagappally. Case alleged against second accused in crime 351/2003 of Ochira police station was that he committed an offence under Section 8(i) of Abkari Act. Case as against first accused was committed and he was tried by Additional Sessions court, Kollam in S.C.1511/2006. On the evidence learned Additional Sessions Judge found him not guilty and acquitted. Petitioner, the absconding accused has now filed this petition under Section 482 of Code of Criminal Procedure to quash the L.P case pending against him contending that even if a fresh trial is to be conducted, it will be a futile exercise and in such circumstances, the L.P.case is to be quashed. Learned counsel vehemently argued that evidence adduced by the prosecution was not accepted by the learned Sessions Judge and even if, some 2 CRMC 1821/09 evidence is to be let in against petitioner, petitioner cannot be convicted and therefore when there is no chance of conviction, there is no necessity to undergo the ordeal of a trial and hence the case is to be quashed. 2. Fact that co-accused was acquitted on the evidence let in, is not a ground to quash the proceedings as against absconding accused. As there is no evidence was let in against petitioner, he could be acquitted after recording the evidence if ther is no evidence. But the case cannot be quashed based on the evidence let in the earlier case. Therefore, prayer of the petitioner to quash the criminal proceedings cannot be allowed. 3. Learned counsel appearing for petitioner then submitted that petitioner was working abroad and therefore, could not appear and is prepared to surrender and when the petitioner surrenders a direction is to be issued to release him on bail. 4. Question whether petitioner is to be released or not, is to be considered by the learned Magistrate, when petitioner surrenders. It is not for this court to direct the Magistrate to release the 3 CRMC 1821/09 petitioner on bail. When absconding accused surrenders before the Magistrate and files application for bail, Magistrate is expected to pass orders without delay. In such circumstances, I find no reason to believe that Magistrate will not act in accordance with law. Hence no direction is warranted. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.