IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Crl.MC.No. 3208 of 2009 --------------------------------------- LP.62/2005 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... PETITIONER/2ND ACCUSED: SAJEER, AGED 28 YEARS, S/O.MUHAMMED, KOLODY HOUSE, RASHEED NAGAR, MAMBURAM, THRIKKULAM AMSOM, DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3208 of 2009 -------------------------- ORDER Petitioner was the second accused in C.C.No. 303/2001 on the file of Judicial First Class Magistrate's Court-V, Kozhikode, taken cognizance for the offence under Section 379 read with Section 34 of Indian Penal Code. After the examination of PW8, first accused absconded and the case was refiled and transferred to the long pending register. When presence of the first accused was later procured, he was tried in C.C.No.529/2007. As per Annexure-A2 judgment dated 20.8.2009, first accused was found not guilty and was acquitted under Section 248(1) of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that in view of the order of acquittal of the co-accused and the failure of the prosecution to produce the confession statement of CRMC3208/09 2 the first accused, based on which petitioner was also implicated, the case is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that as is clear from the judgment of the learned Magistrate in C.C.No.529/2007,the alleged confession statement was not produced at the time of trial and in such circumstances, even if petitioner is to be tried, he cannot be convicted and therefore, the case is to be quashed. 4. For the reason that the co-accused was tried and acquitted, an absconding accused is not entitled to get the case against him quashed. Evidence, which was let in, in C.C.No.529/2007, is only as against the first accused. In such circumstances, based on the findings in that case alone, petitioner is not entitled to get the proceedings as against him quashed. Petitioner is entitled to raise all the contentions before the CRMC3208/09 3 learned Magistrate. Petitioner is also at liberty to surrender before the learned Magistrate and apply for bail. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders on the application without delay. I find no reason to believe that the Magistrate will not act in accordance with law or is not aware of the provisions of law or the decisions of this Court or the Apex Court. Hence, no direction is warranted. Petition is disposed. 20th October, 2009 (M.Sasidharan Nambiar, Judge) tkv