IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.MC.No. 3646 of 2005() ------------------------- SC.457/2004 of ADDL.SESSIONS COURT,FAST TRACK NO.1, (AD HOC), MANJERI. CP.47/2004 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER(S): ACCUSED 3,4 & 9 --------------------------------------- 1. MUHAMMED RAFI, S/O. KUNHEEDU, KALLANKUNNAN HOUSE, KOTTAKKAL AMSOM, PALAPPURAM DESOM, MALAPPURAM DISTRICT. 2. ABOOBACKER, S/O. SOOPI, KALLANKUNNAN HOUSE, PARAPPUR AMSOM, DESOM, MALAPPURAM DISTRICT. 3. MUSTHAFA, S/O. HASSAN, PUTHANMALIYEKKAL HOUSE, MOOZHIKKAL, ATTAKOYATHANGAL ROAD, MAMPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): COMPLAINANT/STATE: --------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KOTTACKAL POLICE STATION, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.13177/05 IN CRL.M.C.NO.3646/05 //DISMISSED// 11.2.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.3646 OF 2005 ----------------------------------------------------- DATED THIS THE 11TH DAY OF FEBRUARY , 2009 O R D E R Petitioners are accused Nos.3, 4 and 9 in Crime No.162/99 of Kottakkal Police Station. The offence alleged against the petitioners herein and other accused, altogether 11 in numbers, were under sections 143, 147, 148, 323 and 324 read with Section 149 of IPC. The case against the petitioners and other accused were committed for trial as per order in C.P.No.47/04 of J.F.C.M., Malappuram. The learned Sessions Judge, Manjeri made over the case to Additional Sessions Court, Fast Track No.1 (Ad hoc), Manjeri. Annexure-A is the true copy of the judgment in S.C.No.457/04 dated 17.5.2005, which would reveal that altogether 11 accused are there in that case, out of whom, all other accused, except the petitioners herein who are accused Nos.3, 4 and 9, faced the trial and the petitioners were absconding. It is also mentioned in the judgment that other accused who faced trial were acquitted under Section 235 of Cr.P.C. But, nothing has been mentioned regarding the CRL.M.C.No.3646/05 -2- absconding accused and whether the case against them is split up or re-filed by giving another Sessions Case number. The prayer in this petition is to quash Annexure-B charge in Crime No.162/99 of Kottakkal Police Station in C.P.No.47/04 on the file of J.F.C.M., Malappuram in S.C.No.457/04 on the file of Addl.Sessions Judge, Fast Track Court-I, (Ad hoc), Manjeri in respect of the petitioners. 2. Heard the learned counsel appearing for the petitioners and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioners that the remaining accused in S.C.No.457/04 who faced the trial were acquitted as revealed from Annexure A, the judgment dated 17.5.2005. It is also submitted that the de facto complainant in S.C.No.457/04 is the first accused in S.C.No.326/03 and PWs 2 to 4 are accused Nos.2 to 4 respectively. In S.C.No.326/03, accused 1 to 4, were found guilty and were convicted, who were the real culprits. Copy of that judgment is not produced. Thus, according to the learned counsel appearing for the petitioners, Annexure A judgment has become final and even if the present petitioners are also facing trial, the only course is an acquittal. Therefore, the charge against the petitioners herein is liable to be quashed. CRL.M.C.No.3646/05 -3- 4. The prayer made by the petitioners' counsel is vehemently opposed by the learned Public Prosecutor. 5. The submission made by the learned counsel appearing for the petitioners that, for the reason of the conviction of the de facto complainant and his sons in Crime No.162/99 of Kottakkal Police Station, who are the accused persons in the main case, S.C.No.326/03, wherein offence under sections 302 was also included and had faced trial in respect of the same incident and in the light of the judgment in S.C.No.457/04- Annexure A, which is the judgment in the counter case in respect of the same incident, whereby some other co-accused were already acquitted and even if the petitioners are also facing trial, they will be acquitted etc. cannot be accepted as valid grounds to allow this petition. Hence the prayer made in the petition to quash the charge against the absconding accused, who are petitioners 1 to 3 and arrayed as accused Nos.3, 4 and 9 respectively in S.C.No.457/04 cannot be allowed. This point is decided by a Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) wherein it is held that acquittal of some of the accused after trial, will not entitle co-accused for an acquittal invoking the inherent power under Section 482 of Cr.P.C. The power under Section CRL.M.C.No.3646/05 -4- 482 of Cr.P.C. cannot be invoked to prevent the trial of the co- accused. So, only by referring to the overt act played by the accused, who faced the trial as spoken to by the witnesses in the case of the co- accused, this Court cannot exercise its jurisdiction under Section 482 of Cr.P.C. to quash the proceedings and prevent the trial against the absconding accused. In these circumstances, I find that there is no merits in this petition, and it is liable to be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn