IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.MC.No. 3944 of 2009() ----------------------------------- CC.854/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... PETITIONER/7TH ACCUSED --------------------------------------- SHIBU. J, KUZHINJANVILA, VADAKKE PUTHEN VEEDU, AYIRA P.O., THIRUVANANTHAPURAM. BY ADV. MR.PIRAPPANCODE V.S.SUDHIR MR.JELSON J.EDAMPADAM RESPONDENT/ COMPLAINANT -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM, (SUB INSPECTOR OF POLICE, POZHIYOOR POLICE STATION, THIRUVANANTHAPURAM DIST). BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3944 OF 2009 =========================== Dated this the 7th day of December,2009 ORDER Petitioner is the seventh accused in C.C.244/1999 on the file of Judicial First Class Magistrate Court II, Neyyattinkara taken cognizance for the offence under sections143,147,148,323 and 324 read with section 149 of Indian Penal Code against nine accused. By Annexure XII judgment dated 30.12.2006, accused 2,4,6 and 9 were acquitted and the case as against accused 1,3,5,7 and 8 were split up and refiled as C.C.854/2006. Petitioner filed this petition under section 482 of the Code of Criminal Procedure to quash the case pending against him contending that in view of the order of acquittal as against the co-accused by Annexure XII judgment, the case as against the petitioner is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Though learned counsel argued that based on Annexure XII judgment, the case as against the petitioner is to be quashed, based on the judgment of Crl.M.C.3944/2009 2 acquittal against the co-accused, an absconding accused is not entitled to get the case as against him quashed. 4. Learned counsel then submitted that part of the evidence was already been recorded in the presence of the petitioner and in such circumstance the learned Magistrate has to continue the trial only from that stage alone and a de novo trial is not necessary. 5. Annexure III, the order sheet of the learned Magistrate shows that on 11.6.2001 charge against the petitioner and others was framed, read over and explained and his plea was recorded. Proceeding paper shows that evidence of the prosecution witness was recorded till 2.9.2005, in the presence of the petitioner or in his absence in the presence of his counsel an application filed by him to dispense with his presence. It was on 11.8.2005 PW8 was examined and Exts.P9 to P10 were marked. The order sheet shows that on 2.9.2005 though petitioner was absent, an application was filed on his behalf also for examination of Cws. 1 and 4 the case was adjourned on payment of cost. On 3.10.2005 when the case was posted for further evidence petitioner was absent. His counsel was also absent and there was no representation. The case was then posted to 4.11.2005, after issuing non bailable warrant and it was called on 14.11.2005. On that day non Crl.M.C.3944/2009 3 bailable warrant issued as against the petitioner was returned stating that he could not be arrested. On 13.12.2005, learned Magistrate split up the case as against the petitioner and the first accused and the evidence of other witness was proceeded in the presence of the other accused. In such circumstance, when the presence of the petitioner is procured, learned Magistrate has to record the evidence only from that stage, namely the examination of the witnesses subsequent to PW8. Learned Magistrate need not conduct a de novo trial and has to try the case against petitioner only from the stage of completion of the evidence of PW8 and marking of Ext.P9 and P10 series. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006