IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.MC.No. 707 of 2010() ------------------------ CC.706/2007 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER/ ACCUSEDNO.11 ------------------------------------------- ANIL @ KUTTAN, S/O.PAVITHRAN, KRISHNAS, MARAKKAPPU KADAPPURAM, THAIKADAPPURAM P.O., NILESHWAR, KASARAGOD DISTRICT. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT/ COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.M.C. No. 707 OF 2010 -------------------------- Dated this the 17th day of March, 2010 O R D E R Petitioner is the 11th accused in C.C. No.47/2009 on the file of Chief Judicial Magistrate, Kasargod taken cognizance on Annexure-3 final report for the offences under Section 143, 147, 148, 283, 225(B), 353 and 427 read with Section 149 of Indian penal Code and Section 3(1)(2)(a) of the Prevention of Damage to Public Property Act, 1984. As accused Nos.2, 8, 9, 11 and 14 were absconding, case as against them was split up and refiled as C.C. No.47/2009 and the other accused were tried by the learned Chief Judicial Magistrate. By Annexure-8 judgment, those accused were acquitted. As the petitioner was again absconding, the case as against him was refiled as L.P. No.33/2009. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings pending against him contending that the petitioner was not an absconder, as he left India in September 2006 to Japan to pursue a career in Japanese language and as he did not get an employment therein, he had reported back on 10.2.2010 and he was not served with a summons earlier. The petitioner would contend Crl.M.C.No.707/2010 2 that in view of the order of acquittal against the co-accused and the findings therein, no purpose will be served by directing the petitioner to undergo the ordeal of a trial, especially when the very prosecution case has been disbelieved. It is therefore contended that proceedings as against the petitioner is to be quashed. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Though by Annexure-8 judgment the nine co-accused were acquitted, as held by the Full Bench in Moosa v. Sub Inspector of Police {2006 (1) KLT 552 (FB)} Annexure-8 judgment can only be looked into to find out who are the parties therein and whether the prosecution ended in conviction or acquittal. Based on Annexure-8 judgment the proceedings against the absconding co- accused cannot be quashed, exercising the powers under Section 482 of the Code of Criminal Procedure. 4. The prosecution case itself is that the common object of the unlawful assembly was to save the petitioner and accused Nos.9,11 and 14 who were taken into custody by the police and consequent to the incident petitioner as well as those persons who Crl.M.C.No.707/2010 3 had taken into custody escaped from the custody. In the nature of the case, it is not in the interest of justice to quash the proceedings as sought for. 5. Learned counsel then submitted that as petitioner is not an absconder, as he was not served with summons and as he was in Japan and returned back now, learned Chief Judicial Magistrate may be directed to consider the application for bail on the date of his surrender. 6. When an absconding accused surrenders, against whom a non-bailable warrant is pending, and files an application for bail, the Magistrate is expected to pass orders in the application without delay. I find no reason to believe that the learned 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. Petition is disposed. M.SASIDHARAN NAMBIAR, (JUDGE ) vps Crl.M.C.No.707/2010 4 Crl.M.C.No.707/2010 5