IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.MC.No. 2150 of 2009() ------------------------- AGAINST THE ORDER IN CC 378/2005 IN LP.29/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), PUNALUR .................... (CRIME NO.322/04 OF PATHANAPURAM POLICE STATION) PETITIONER(S): IST ACCUSED: ----------------------------------------------- BIJU MAJEED, AGED 33, S/O.MAJEED RAWTHER, RESIDING AT VAYALIRAMPU PURAYIDATHIL, EDATHARA, PATHIRIKKAL MURI, PATHANAPURAM VILLAGE, KOLLAM DISTRICT. BY ADVS. MR.R.RAJASEKHARAN PILLAI, SMT.SABINA JAYAN. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2150 of 2009 -------------------------- ORDER Petitioner was the first accused in C.C.No. 378/2005, now pending as L.P.No.29/2009 on the file of Judicial First Class Magistrate's Court-II, Punalur. Prosecution case is that on 31.10.2004, the two accused, in furtherance of their common intention to cause mischief to the defacto complainant, trespassed into his courtyard and committed mischief by breaking open the glasses of the windows and ventilation of his house and caused a loss of Rs.2,500/- and thereby committed offences under Sections 447, 427 and 506(1) read with Section 34 of Indian Penal Code. As petitioner was absconding, the second accused, his father was tried in C.C.No.378/2005. Under Annexure- I judgment, learned Magistrate acquitted him. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that in the light of Anneuxre-I order of acquittal, even if petitioner is to be tried, there is CRMC 2150/09 2 no chance of a successful conviction. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner vehementally argued that though defacto complainant supported the prosecution case, learned Magistrate, under Annexure-I judgment, found that it is not safe to rely on his evidence and PWs 2 and 3, the eye witnesses, turned hostile and in such circumstances, even if the same defacto complainant is to be examined again, there cannot be a conviction and in such circumstances, it would result only in unnecessary waste of valuable time of the court and hence the case is to be quashed. 5. Learned Public Prosecutor pointed out that the defacto complainant had deposed in favour of the prosecution earlier when second accused was tried and though PWs 2 and 3 did not support the prosecution case, the other eye witness was not examined and if he is to be examined and he corroborates the evidence of PW1, the result need not, necessarily, be as in Annexure-I judgment and therefore, based on Annexure-I CRMC 2150/09 3 judgment, the case as against the petitioner cannot be quashed. 6. There is force in the submission of the learned Public Prosecutor. Acquittal of a co-accused, after trial, is not a valid or sufficient ground to quash the case as against an absconding accused. As pointed out by learned Public Prosecutor, under Annexure-I judgment, learned Magistrate did not believe the evidence of defacto complainant, as his evidence was not corroborated. Even if the other two eye witnesses, who turned hostile, are not supporting the prosecution case, if the remaining eye witness, who was not examined earlier, is to support the prosecution case, it cannot be said that evidence of defacto complainant, necessarily, be disbelieved. In any case, it is a matter to be considered by the learned Magistrate on evidence. In such circumstances, based on the order acquittal of the co-accused, the case as against the petitioner cannot be quashed. Hence, the prayer to quash the case is rejected. Learned counsel then submitted that there may be a direction to the Magistrate to expedite the trial of the case and also CRMC 2150/09 4 to grant bail. If the petitioner 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 Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that the Magistrate will not act in accordance with law. Hence, no direction is warranted. But, if the petitioner surrenders and files an application for expeditious disposal of the case, Magistrate may dispose the same without delay. Petition is disposed. 22nd July, 2009 (M.Sasidharan Nambiar, Judge) tkv