IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 Crl.MC.No. 1752 of 2009() ------------------------- CC.952/2005 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... (CRIME NO.449 OF 2005 OF KAYAMKULAM POLICE STATION) PETITIONER(S): ACCUSED NO.13: --------------------------------------------------- RAJENDRAN, VAYALIL VEEDU, GOVINDAMUTTOM MURI, PUTHUPPALLY VILLAGE. BY ADVS. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), MR.A.R.DILEEP, SMT.SURYA SASI. RESPONDENT(S): STATE: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1752 OF 2009 ------------------------------------------ Dated 5th June 2009 O R D E R Petitioner was accused No.13 in C.C.952/2005 on the file of Judicial First Class Magistrate, Kayamkulam. As petitioner was absconding, the case as against him and the second accused were split up and re-filed as C.C.77/2007. As the presence of the petitioner could not be procured even thereafter, the case was transferred to long pending register and is now pending as L.P.77/2007. Prosecution case is that all the accused formed themselves into an unlawful assembly and in furtherance of their common object armed with deadly weapons committed offences under Sections 143, 147, 148, 332 read with Section 149 of Indian Penal Code and Section 3(1) of Prevention of Damages to Public Property Act on 26.6.2005 at about 5.30 p.m. Other co-accused who were tried by the learned Magistrate were acquitted as per Annexure-III judgment finding them not guilty. This petition is filed by the CRMC 1752/09 2 absconding accused No.13 contending that in the light of Annexure-III judgment acquitting other co-accused there is no chance for a conviction and therefore the case as against him is to be quashed. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner pointed out that in Annexure-I FIR, name of the petitioner is not mentioned and as per the final report petitioner was implicated based on additional statement taken by the investigating officer and in Annexure-III judgment learned Magistrate found that test identification parade should have been conducted and in such circumstances, when all other co-accused were acquitted, no fruitful purpose will be gained by prosecuting the petitioner and hence the case is to be quashed. 4. Fact that co-accused were acquitted after trial, on the evidence let in that case, will not enable absconding accused to get the case against him quashed. Question whether there is evidence against the petitioner can only be decided at the trial. In such circumstances, based on Annexure-III CRMC 1752/09 3 order of acquittal against the other accused, petitioner is not entitled to get the case pending against him quashed. Fact that name of the petitioner is not mentioned in the FIR is also not a ground to quash the proceedings as sought for. Remedy of the petitioner is to surrender before the Magistrate and seek expeditious disposal of the case. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.