IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.MC.No. 3607 of 2009() ------------------------------------ CC.64/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONER/ ACCUSED --------------------------------- ABDUL KHADER, S/O.MUHAMMED KANJIRAMCHOLA VEEDU, KARIMBA P.O BY ADV. MR.K.ABDUL JAWAD MR.U.MUHAMMED MUSTHAFA RESPONDENTS/COMPLAINANTS ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASST.SUB INSPECTOR OF POLICE, MANGALAM DAM POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. p M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3607 OF 2009 =========================== Dated this the 24th day of November,2009 ORDER Fourth accused in C.C.454/2000 on the file of Judicial First Class Magistrate Court, Alathur filed this petition under section 482 of Code of Criminal Procedure to quash C.C.64/2008, the split up case now pending against him. Learned Magistrate has taken cognizance of the offence under section 401 read with section 34 of Indian Penal code on Annexure A final report against four accused. When the presence of the three accused alone could be procured, the case as against other accused was split up and refiled as C.C.16/2004 and the third accused was tried by the learned Magistrate. As the prosecution witnesses did not identify the third accused, by Annexure B judgment, he was acquitted. Later when the presence of accused 1 and 2 were procured, they were tried by the learned Magistrate in C.C.16/2004 after splitting up the case as against him as C.C.64/2008. When the prosecution witnesses were examined witnesses did not identify accused 1 and 2 and by Annexure C judgment they were Crl.M.C.3607/2009 2 also acquitted. This petition is filed to quash the proceedings as against the petitioner contending that in view of the order of acquittal of the other three co- accused, when there is no material to convict the petitioner, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner submitted that according to the prosecution, four accused were found on the varandah of the shop room at about 11 p.m on 14.3.2000 by the Sub Inspector of Police and on the allegation that they committed the theft or robbery they were arrested and when the three among those four persons were already acquitted, petitioner cannot be a member of a wandering or other gang of persons associated for the purpose of habitual theft or robbery and petitioner, even if tried cannot be convicted for the offence under section 401 of Indian Penal Code. Learned counsel also argued that as the prosecution witnesses did not identify accused 1 to 3 when they were tried, even if the petitioner is to be tried, there is no likelihood of a successful prosecution and therefore continuation of prosecution will not serve any purpose and hence it is to be quashed. 4. True, prosecution case is that the four accused Crl.M.C.3607/2009 3 were found under suspicious circumstance on the night of 14.3.2000 and they were arrested on the allegation that they are members of a gang. It is also true that as per Annexure A final report, first accused was the person who is habitually committing the offence of theft or robbery. But the question is whether based on Annexure B and C judgments of acquittal as against the co-accused, petitioner is entitled to get the case as against him quashed. 5. The prosecution witnesses when examined, in C.C.454/2000 as well as C.C.16/2004, did not identify accused 1 to 3 as the persons who were found under suspicious circumstance and arrested by the police on that fateful night. That need not necessarily mean that they will not identify the petitioner as one among them, eventhough there is a likelihood that they may not identify him. But on the assumption that the witness will not identify the petitioner, it is not possible to quash the proceedings. Though learned counsel argued that ingredients of the offence is not disclosed, when prosecution witnesses were examined in the earlier cases based on Annexure B and C judgments, as concluded by the Full Bench the co-accused who was absconding is not entitled to get the case quashed. The question whether Crl.M.C.3607/2009 4 petitioner can be convicted or not is to be decided, based on the evidence to be tendered. In such circumstance, the prayer for quashing the proceedings can only be rejected. 6.Learned counsel then submitted that as a non bailable warrant is pending, magistrate may be directed to consider the application for bail when moved by the petitioner, on the date of his surrender. 7. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders in the application without delay. I find no reason to believe that Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that Magistrate will not act in accordance with law. Hence no direction is warranted. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006