IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.MC.No. 2246 of 2009 -------------------------------- CC.88/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II (FOREST OFFENCES), PUNALUR .................... PETITIONER(S): --------------------- SHERIEF RAWTHER T.K., S/O.KUNJU MOHAMMED, THAZHATHETHIL, VALLANA MURI, KIDANGOOR VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAGHAVAN UNNITHAN, PALAMKONATH VEEDU, KOTTAKKORAM WARD, PARIPPALLY P.O., KALLUVATHUKKAL, KOLLAM. PUBLIC PROSECUTORSRI.B.VINOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2246 of 2009 -------------------------- ORDER Petitioner was the second accused in C.C.No. 43/2003 on the file of Judicial First Class Magistrate's Court-II, Punalur. As accused 2 and 3 were absconding and first accused died and consequently the charge as against him abated, accused 4 and 5 were tried by the Magistrate and under Annexure-A6 judgment dated 7.3.2008. Accused 4 and 5 were acquitted and the case as against accused 2 and 3 was split up and refiled as C.C. No.88/2008. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A8 charge as well as the case pending before the Magistrate contending that he has nothing to do with the offences alleged. 2. Case of the petitioner is that he was employed in Saudi Arabia and he left Bombay on 2.3.1992 and returned back only on 6.12.1994 and CRMC 2246/09 2 when the alleged incident occurred, he was not in India and therefore, the case as against him is an abuse of process of the court. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner submitted that, as is clear from Annexures-A1 and A2, copies of passport of the petitioner, after petitioner left Bombay on 2.3.1992, he returned to India only on 6.12.1994 and in such circumstances, petitioner cannot be prosecuted for an incident, which occurred during 1993 and for that reason alone, the case is to be quashed. It is also argued that based on Annexure-A8 charge, petitioner is not likely to be convicted at all and in such circumstances also, the case is to be quashed. 5. Learned Public Prosecutor submitted that the case against the petitioner is that he is the Proprietor of J.S.Financiers and it is in furtherance of the common intention, all the CRMC 2246/09 3 accused committed the offence and petitioner is not entitled to get the case quashed and if at all, petitioner could seek an order of discharge. 6. The fact that accused 4 and 5 were acquitted under Annexure-A6 judgment is not a ground to quash the proceedings as against the petitioner. The question is whether, on the materials available for framing the charge, petitioner could be proceeded or whether prosecution would amount only to abuse of process of the court. 7. On hearing the learned counsel appearing for the petitioner and Learned Public Prosecutor, I do not find that in the facts of the case, the extraordinary inherent jurisdiction of this Court is to be invoked to quash the case as against the petitioner. Petitioner is at liberty to seek an order of discharge from the learned Magistrate. Petitioner is also entitled to file an application under Section 239 of Code of Criminal Procedure and raise all the contentions available before the CRMC 2246/09 4 Magistrate and seek discharge. If the petitioner appears and files an application for discharge, Magistrate is directed not to insist for the presence of the petitioner for hearing of the application. Petition is disposed accordingly. 30th July, 2009 (M.Sasidharan Nambiar, Judge) tkv