IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 CRMC.No. 4023 of 2009() ----------------------------- CC NO. 335/2007 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR ARISING OUT OF CRIME NO. 71/2003 OF THE VADAKKANCHERRY POLICE STATION ......................................... PETITIONER/ACCUSED ---------------------- NIKSON,S/O.GEORGE @ PAPPACHAN, AGED 29 YEARS,VADAKKEMURI HOUSE, PALAKUZHI.PO, PALAKKAD-678 684. BY ADVS. MR.TOJAN J. VATHIKULAM MR.PREMCHAND R.NAIR MR.R.RAJAGOPAL RESPONDENT/COMPLAINANT/DEFACTO COMPLAINANT ---------------------------------- 1. STATE OF KERALA,REPRESENTED BY SUB INSPECTOR OF POLICE VADAKKANCHERRY THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. JOSE,S/O.JOSEPH, VADAKKEMURI, MANGALAM PALAM, ALATHUR, PALAKKAD. BY MR. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rkc M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4023 OF 2009 ------------------------------------------ Dated 22nd December 2009 O R D E R Petitioner is the third accused in C.C.684/2003 on the file of Judicial First Class Magistrate, Alathur now pending as C.C.335/2007. As the petitioner was absconding, other two accused were tried and by Annexure-C judgment those accused were acquitted. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings pending against petitioner contending that when substractum of the case has been disbelieved by the learned Magistrate in Annexure-C, no purpose will be served by the petitioner undergoing the ordeal of a trial, as it would only result in Crmc 4023/09 2 unnecessary waste of valuable time of the court and in such circumstances, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that by Annexure-C judgment learned Magistrate disbelieved the prosecution case and when the very substractum of the case has been destroyed, no purpose will be served by directing the petitioner to undergo the ordeal of a trial. 4. In view of the Full Bench decision of this court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Annexure-C judgment cannot be looked into, in a petition filed under Section 482 of Crmc 4023/09 3 Code of Criminal Procedure to quash the case as against absconding accused. So for the reason that learned Magistrate did not accept the evidence of the witness in Annexure-C judgment, it cannot be said that no acceptable evidence will be adduced, if petitioner is tried. In such circumstances, the case cannot be quashed as sought for. Petitioner is at liberty to raise all the contentions before the learned Magistrate and also seek an order of discharge. 5. Learned counsel also submits that there may be a direction to release the petitioner on bail when he surrenders. When an accused surrenders and files an application for bail, it is for the Magistrate to consider whether he is to be released on bail or not. I do not believe Crmc 4023/09 4 that the Magistrate is unaware of the provisions of law or the decisions of this court or that the Magistrate will not act in accordance with law. Hence no direction is warranted. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.