IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Crl.MC.No. 2459 of 2008() ------------------------- AGAINST THE ORDER IN LPC.264/2007 IN CC.389/2003 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER: ACCUSED ------------------- 1. NISSAR AHAMMED, AGED 29/08 S/O.ASSAINAR, LATHEEF, KURICHIPALAM UPPALA, KASARAGOD. 2. MUHAMMED NAFAZ, AGED 29/08 S/O.SULIMAN HAJI, BAPPAYITHOTTIL, KURICHIPALLAM, UPPALA, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: COMPLAINANT ------------------------ STATE REP. BY SHO, MANJESHWAR REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2459 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2008 O R D E R The petitioners face indictment as accused 10 and 11 along with 13 others for offences punishable, inter alia, under Section 353 r/w. 149 I.P.C. The petitioners were not available for trial. The co-accused who faced trial have been found not guilty and acquitted. The petitioners have now come before this Court with the contention that the co-accused having already been found not guilty and acquitted as per the judgment dt.31.8.06 in C.C. 389 of 2003, the proceedings against the petitioners may also be quashed. 2. The question of law on this aspect is squarely covered by the decision in Moosa v. S.I. of Police (2006 (1) KLT 552). 3. Called upon to explain the fact how the petitioners can get out of the sweep of the dictum in Moosa (supra), the learned counsel for the petitioners submits that all the witnesses were examined by the prosecution in the case against the co-accused Crl.M.C.No. 2459 of 2008 2 and it has been held that the prosecution has failed to prove the offences alleged. I take note of the observations in paragraph 11 of the judgment rendered in the trial against the co-accused, which clearly indicate that the crucial witnesses had not named and they were not identified the accused persons. In these circumstances I am satisfied that the petitioners cannot claim any benefit or advantage in their favour on the basis of the judgment of acquittal rendered in favour of the co-accused. The petitioners must surrender before the learned Magistrate and take part in the trial against them. 4. This application is accordingly dismissed. Needless to say if the petitioners appear before the learned Magistrate and apply for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R. BASANT) Judge tm