IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.MC.No. 3962 of 2010() ----------------------------- (ST.530/1997 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA CRIME NO.11/95 OF PERAMBRA POLICE STATION, NOW PENDING AS L.P.NO.09/2000 ON THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERAMBRA) .................... PETITIONER(S): IST ACCUSED ----------------------------------- K.VINODAN, S/O.KUNHIKKANNAN CHETTIAR, VELLACHALIL, KOOTHALIL AMSOM, PITHOTH DESOM. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): COMPLAINANT -------------------------------------- THE STATE OF KERALA, REP. BY THE CIRCLE INSPECTOR OF POLICE, PERAMBRA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LEKHA C. NAIR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3962 OF 2010 --------------------------------------------- Dated 28th September, 2010 O R D E R Petitioner was the first accused in S.T.530/1997 on the file of Judicial First Class Magistrate's Court-II, Perambra. He absconded at the time when the case was posted for questioning under Section 313 of Code of Criminal Procedure. Consequently, case against him was split up and refiled. Second accused, his father, was tried and acquitted under Annexure-3 judgment. Case against the petitioner is now pending as L.P.9/2000 and a non bailable warrant is pending. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that in view of Annexure-3 Crmc 3962/10 2 judgment acquitting the second accused, case against the petitioner is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that in view of Annexure-3 judgment there is no prospect of convicting the petitioner and in such circumstances, it is not in the interest of justice to continue the prosecution and therefore, case against him is to be quashed. Learned counsel also submitted that even if, the case is not quashed a direction may be issued to the learned Magistrate to release him on bail on his surrender. 4. As held by the Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) based on a judgment acquitting the Crmc 3962/10 3 co-accused, an absconding accused is not entitled to get the case against him quashed. Remedy of the petitioner is to appear before the learned Magistrate, especially when he absconded at the stage of questioning under Section 313 of Code of Criminal Procedure. If there is no evidence against him, learned Magistrate can only acquit him. Petitioner is at liberty to surrender before the learned Magistrate and apply for bail. If an application is filed, it is for the learned Magistrate to consider the question of releasing him on bail. Learned Magistrate is necessarily to take into consideration the result of trial faced by the second accused at that stage. Petition is disposed granting liberty to the petitioner to raise all the contentions Crmc 3962/10 4 raised herein before the learned Magistrate. If petitioner surrenders and files an application for bail, Magistrate is expected to pass orders without delay. I find it not necessary to give any further direction. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.