IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 Crl.MC.No. 2603 of 2009 ---------------------------------- CC.NO.2856/2002 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA. .................... PETITIONERS/ ACCUSED: ------------------------------------- 1. ZAKEER, S/O.BEERAVU, KORANIYIL HOUSE,ULIYANNOOR,KADUNGALLOOR. 2. HAMEED,S/O.MUHAMMED, IYAMBADY HOUSE,ULIYANNOOR,KADUNGALLOOR. BY ADV. MR.P.K.ABOOBACKER(EDAPPALLY). RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 2603 OF 2009 ------------------------------------------ Dated 21st August 2009 O R D E R Petitioners were the absconding accused 3 and 5 in C.C.2856/2002 on the file of Judicial First Class Magistrate-I, Aluva. Out of eight accused persons, presence of only the fourth accused could be procured at the time of trial. Therefore, the case as against the other accused were split up and re- filed as C.C.28/2008. Learned Magistrate under Annexure-A2 judgment, found the fourth accused not guilty and acquitted him of the offences under Sections 143, 147, 384 and 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure, to quash the case as against them contending that in the light of the order of acquittal of fourth accused under Annexure-A2 judgment, even if petitioners are to be tried, they cannot be convicted and therefore the case is to be quashed. 2. Learned counsel appearing for the petitioners and learned Public prosecutor were heard. 3. Argument of the learned counsel CRMC 2603/09 2 appearing for the petitioners is that Pws.1 to 3 the police officials who were examined in C.C.2856/2002, did not identify the accused and in such circumstances, even if they are to be examined again, they will not identify the petitioners and if that be so, petitioners cannot be convicted and in such circumstances, in the interest of justice the case is to be quashed. 4. On hearing the learned counsel, I cannot agree with the submission. Because of the acquittal of one of the eight accused, the case as against the petitioners who were then accused 3 and 5 and absconding cannot be quashed. Question whether witness would identify the petitioners herein at the time of trial can only be decided at the time of recording the evidence. For the reason that when Pws.1 to 3 were examined earlier they did not identify the fourth accused, who alone was facing trial at that time, does not mean that petitioners will not be identified when they are examined again. In such circumstances, based on the order of acquittal of one of the co-accused, the case as against the petitioners cannot be quashed. Learned counsel appearing for petitioners then submitted that learned Magistrate may be directed to dispose the case CRMC 2603/09 3 expeditiously. Judicial First Class Magistrate-I, Aluva is directed to dispose C.C.28/2008 expeditiously. M.SASIDHARAN NAMBIAR, JUDGE. uj.