IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.MC.No. 1186 of 2010() ------------------------- CC1130/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): -------------------------- SHINE, S/O.RAJAPPAN, KAKKISSERIL VEETIL, KURUPPUMTHARA VILLAGE, KOTTAYAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE: ------------------------------------------ STATE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.49/2001 OF RAILWAY POLICE STATION, ERNAKULAM.) PUBLIC PROSECUTOR SRI.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.1186 of 2010 = = = = = = = = = = = = = = Dated: 1.07.2010 ORDER Petitioner, who is the 6th accused in Crime No.49/2001 of Railway Police Station, Ernakulam for offences punishable under Sections 143,147,448,294(b) and 332 read with 149 IPC and Section 151 of the Indian Railways Act, seek to quash the entire proceedings. 2. Originally the case was taken on file as C.C.No.260 of 2003 before the Magistrate. But since the petitioner (A6) and A1 were absconding the case against them were split up and re-filed as C.C.No.1130 of 2008. Since A3 was no more, the charge against him stood abated. Out of the three accused who faced trial namely A2,A4 and A5, A4 and A5 were acquitted and A2 alone was convicted. A2 was, however, released on probation. 3. The learned counsel would submit that the only persons who were arrested from the place of occurrence ( railway station ) were only A1 to A3 and even in Annexure 3 judgment as per which C.C.No.260/2003 was disposed of there is an observation in paragraph 12 that there is absolutely no material to connect A4 to A6 with the alleged offences. According to the learned counsel for Crl. M.C.No.1186 of 2010 2 the petitioner it would be an exercise in futility and an abuse of the process of the Court if the petitioner is to be tried in C.C.No.1130/2008. 4. In the light of the decision in Moosa Vs.Sub Inspector of Police ( 2006(1) KLT 552), it is not permissible for this Court to consider the plea of the petitioner so as to quash the case against him even without a trial. But at the same time the petitioner has got the remedy to plead for a discharge. I am inclined to permit the petitioner to plead for a discharge in absentia. 5. Accordingly the petitioner may plead for a discharge by filing an application for discharge through his counsel. In case he files such an application, the learned Magistrate shall not insist on his personal presence for the disposal of the discharge petition. It shall be open to the petitioner to highlight the observations in the judgment in C.C.No.260/2003 as well. This Crl.M.C is disposed of reserving the above right of the petitioners. Dated this the 1 st day of July, 2010. V. RAMKUMAR, JUDGE sj