IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 Crl.MC.No. 2738 of 2009 ---------------------------------- [CC.NO.193/2007 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR] .................... PETITIONER/ 2ND ACCUSED: ------------------------------------------ SULAIMAN, AGED 40 YEARS, S/O.ABDULKHADER, IBRAHINTEPURAKKAL, VAKKAD, MALAPPURAM DISTRICT. BY ADVS. MR.P.CHANDRASEKHAR, SMT.UMA. RESPONDENT: ---------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2738 of 2009 -------------------------- ORDER Petitioner was the second accused in C.C.No. 422/2003 on the file of Judicial First Class Magistrate's Court, Tirur. First accused, his brother, was tried after splitting up the case as against the petitioner and refiling it as C.C.No.193/2007. Prosecution case is that on a day in June 2002, petitioner committed theft of cash and gold ornaments from some unknown place and entrusted the stolen articles with first accused for keeping it in safe custody and after two days, petitioner obtained the stolen articles and sold it and the accused, thereby committed the offences. The offence alleged against the first accused was under Section 411 read with Section 34 of Indian Penal Code. The charge as against the petitioner was also the same. Annexure-A2 judgment of the learned Magistrate shows that after recording the evidence, first accused was acquitted as there was no evidence to prove the offence. This petition is filed CRMC 2738/09 2 under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that in the light of the evidence recorded in C.C.No. 422/2003, even if petitioner is to be tried, there is no likelihood of a conviction and in such circumstances, in the interest of justice, the case is to be quashed. It is also contended that there is absolutely no evidence, as against the petitioner, warranting his conviction. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned Public Prosecutor also made available the case diary. 4. Even though prosecution case is that cash and gold ornaments were stolen by the petitioner in June 2002 and thereafter entrusted them to his brother, the first accused and after two days, got it back and sold it, Annexure-A2 judgment shows that PW5, who was examined to prove that he had purchased the stolen articles from the accused, had turned hostile and contended that she did not receive anything from the petitioner. Investigating Officer did not investigate CRMC 2738/09 3 as to from where, the alleged theft was committed. In fact, there is no charge for the offence under Section 379 or 380 of Indian Penal Code. In spite of the allegation that petitioner committed theft, petitioner was charged for the offence under Section 411 read with Section 34 of Indian penal Code only. It is absolutely clear that in the light of the materials available as well as the evidence recorded in C.C.No.422/2003, even if petitioner is to be tried, there is no likelihood of a conviction. It would result only in waste of the valuable time of the court. In such circumstances, interest of justice does not warrant continuation of the prosecution. Petition is allowed. C.C.No.193/2007 on the file of Judicial First Class Magistrate's Court, Tirur as against the petitioner is quashed. 22nd September, 2009 (M.Sasidharan Nambiar, Judge) tkv