IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.MC.No. 3854 of 2009() --------------------------------- (CC.NO.755/03 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANJIRAPPALLY) --------------------------------- PETITIONER(S): 2ND ACCUSED ------------------------------------------- MUNEER, S/O. YUSUF, PUTHENPARAMBIL HOUSE, TOWN BHAGAM, PARATHODU, EDAKUNNAM, KANJIRAPPALLY. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): COMPLAINANT ---------------------------------------------- SUB INSPECTOR OF POLICE, KANJIRAPPALLY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3854 OF 2009 ------------------------------------------ Dated 30th November 2009 O R D E R Petitioner is the second accused in C.C.755/2003 on the file of Judicial First Class Magistrate-I, Kanjirappally. As he was absconding, the case as against him was split up and re-filed as C.C.514/2006. Later the case was transferred to the long pending register and now it is pending as L.P.60/2007. By Annexure-2 judgment, learned Magistrate convicted the first accused for the offences under Sections 457 and 380 read with Section 34 of Indian Penal Code. In the appeal filed by the first accused, by Annexure-3 judgment learned Sessions Judge, Kottayam set aside Annexure-2 conviction and acquitted the first accused. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against him. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though by Annexure-3 judgment learned Sessions Judge acquitted the first accused, finding that there is no conclusive evidence to prove the Crmc 3854/09 2 charge as against first accused, based on said acquittal petitioner is not entitled to get the case as against him quashed. Question whether there is evidence as against the petitioner can be decided only on the evidence to be tendered at the time of trial. Based on an order of acquittal as against the co-accused, an absconding accused is not entitled to get case as against him quashed. Hence the case cannot be quashed as sought for. 4. Learned counsel then submitted that petitioner could not appear before the learned Magistrate as he got employment abroad and there may be a direction to the Magistrate to consider his application for bail on the date of surrender itself. 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 provisions of law or the decisions of this court or the Apex court or that Magistrate will not act in accordance with law. In such circumstances, no direction is warranted. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.