IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.MC.No. 3737 of 2009 ---------------------------------- (CRIME NO. 65/2003 OF THRISSUR TOWN WEST POLICE STATION) .................... PETITIONER/ACCUSED NO.8: ------------------------------------------ SUBIN, S/O.PUSHKARAN, PANAKAL HOUSE, VEMMANAD, PAVARATTY, TRISSUR DISTRICT. BY ADV. SMT.JAYASREE MANOJ. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, TRISSUR TOWN WEST POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3737 OF 2009 =========================== Dated this the 20th day of November,2009 ORDER Petitioner is accused No.8 in S.C.5/2008 on the file of Additional Assistant Sessions Court, Thrissur. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings as against him contending that out of the 12 accused, all the other accused were acquitted by Annexure B judgment and even if petitioner is to be tried, in the light of the evidence in that case, petitioner cannot be convicted and therefore it would only result in unnecessary waste of valuable time of the court. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel submitted that all the witnesses examined for the prosecution, when the remaining 11 accused were tried by Additional Sessions Court, did not support the prosecution case and PW3 the independent witness even deposed that there was no such incident and as there is no allegation against petitioner that he has committed any overt act and Crl.M.C.3737/2009 2 the only case is that he is among the members of the unlawful assembly, when all the other alleged members of the unlawful assembly were acquitted, the case as against the petitioner is to be quashed. 4. On going through Annexure E judgment and Annexure A final report, it is clear that one of the injured witnesses, CW3 was not examined before the Additional Sessions Court. The other injured witnesses though deposed that an incident occurred and they sustained injuries deposed that they could not identify the assailants. PW3, the independent witness did not support the prosecution case. But based on Annexure B judgment, the case as against the absconding co-accused cannot be quashed even by relying on the evidence then recorded. For example, if CW3 appears now and when examined he identifies petitioner as one of the members of the unlawful assembly, it cannot be said that the accused need necessarily be acquitted. It is a matter for decision at that stage, based on the veracity and reliability of the evidence. Hence based on the order of acquittal as against the other accused, the case cannot be quashed as sought for by the learned counsel. 5. Learned counsel then submitted that as a non bailable warrant is pending, a direction may be issued to the Sessions Judge to consider the application for bail on Crl.M.C.3737/2009 3 the date of his surrender. It is for the petitioner to surrender before the Sessions Judge and apply for bail. I do not find any reason to believe that Sessions Judge is unaware of the provisions of law or the decisions of this court or the Apex Court or that the Sessions Judge will not act in accordance with law or will not consider the application for bail on the date of his surrender. 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