IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 Crl.MC.No. 3825 of 2009() ----------------------------------- SC.684/2005 OF ASSISTANT SESSIONS COURT, PALAKKAD. CRIME NO.115/2001 OF PUDUNAGARAM POLICE STATION. .................... PETITIONER/3RD ACCUSED: ---------------------------------------- BABU @ SODA BABU , S/O.ARUMUGHAN AGED 36 YEARS, THEKKEKKAD, VANDITHAVALAM,CHITTUR PALAKKAD. BY ADV. MR.K.P.BALAGOPAL RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PUDUNGARAM POLICE STATION THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. PANKAJAKSHAN, S/O. RAMAN,AGED 38 YEARS KARIKULAM, VANDITHAVALAM, CHITTUR, PALAKKAD. R1 BY PUBLIC PROSECUTOR MR.SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3825 OF 2009 =========================== Dated this the 26th day of November,2009 ORDER Petitioner is the third accused in S.C. 684/2005 on the file of Assistant Sessions Court, Palakkad. As petitioner and accused No.19 were absconding, the case as against him was split up and refiled as S.C.457/2009. The offence as against accused 11 and 17 abated as they died during trial. The remaining accused were tried in S.C.684/2005 and by Annexure 2 order all of them were acquitted. This petition is filed under section 482 of the Code of Criminal Procedure to quash the case against the petitioner contending that in view of the order of acquittal by Annexure 2 order and the evidence already tendered, there is no likelihood of conviction and therefore the case is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Annexure 3 copy of petition filed before Assistant Sessions Court, Palakkad in S.C.684/2005 establishes that the disputes were settled by the de facto complaint and the accused. Annexure 2 order Crl.M.C.3825/2009 2 shows that when the other accused were tried, the injured, who was examined as PW7, deposed that he did not identify any of the assailants. The other six witnesses who were examined as eye witness turned hostile and deposed that they did not witness the incident. It is in the light of this evidence, learned Assistant Sessions Judge acquitted the accused who stood for trial. The question is in the light of the said evidence, is it necessary to direct the petitioner to undergo for trial or the case as against him is to be quashed. 4. Though normally based on the order of acquittal of a co-accused, an absconding accused is not entitled to get the case as against him quashed, when the materials establish that even if petitioner is to be tried, no fruitful purpose would be achieved and there is no likelihood of a conviction at all and the trial would result only in wasting the valuable time of the court, it is not in the interest of justice to continue the prosecution. That exactly is the case herein. The case as against the petitioner could be successful, only if there is evidence to prove that petitioner was one among the members of the unlawful assembly who attacked the injured who was examined as PW7 in the earlier case. Apart from the allegation that petitioner is also one among the Crl.M.C.3825/2009 3 members of the unlawful assembly, who attacked and inflicted the injuries on the injured, there is no other case of any overt act against the petitioner. When the injured was examined earlier in S.C.684/2005 he has given evidence that he did not identify any of the assailants. Therefore he is not expected to give any other evidence, even if he is to be examined again in the case. All the other independent eye witnesses have already deposed before the court that they did not witness the incident. In such circumstance, trial of the petitioner would result only in wasting the valuable time of the court. When there is no chance of a successful prosecution, it is not in the interest of justice to continue the prosecution. Petition is allowed. S.C. 684/05 on the file of Assistant Sessions Court, Palakkad is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006