IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 Crl.MC.No. 3524 of 2011() --------------------------------- CC. 60/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGLAM CRIME NO. 61/2005 OF OONNUKAL POLICE STATION ............................... PETITIONER(S): ACCUSED NO. 3 ----------------------------------------------- RITTO THOMAS, AGED 29 YEARS, S/O. THOMAS, PUTHENPURAYIL HOUSE, PAIMATTOM KARA, KUTTAMANGALAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI. S. DILEEP (KALLAR) RESPONDENT(S): COMPLAINANT ------------------------------------------------ THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 31. R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PN Crl.MC.No. 3524 of 2011 APPENDIX PETITIONER(S) EXHIBITS ANNEXURE 1 : COPY OF THE ITE SKILLS CERTIFICATE DTD. 6.2.08 ISSUED BY THE INSTITUTE OF TECHNICAL EDUCATION, SINGAPORE TO THE PETITIONER. ANNEXURE 2 : COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER. ANNEXURE 3 : COPY OF THE JUDGMENT DTD. 29.1.09 IN CC NO. 338/05 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. ANNEXURE 4 : COPY OF THE CHARGE SHEET IN CR. NO. 61/05 OF OONNUKAL POLICE STATION. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE PN N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3524 of 2011 ----------------------------------- Dated this the 16th day of November 2011 O R D E R Petitioner is the 3rd accused in Crime No.61/2005 of Oonnukal Police Station. The allegation is that on the night of 15.5.2005, the police officials found this petitioner (who was the 3rd accused) riding the motorcycle. It was intercepted by the police officials. MO2 was stated to have been seized under Ext.P1 mahazar. Since the accused could not give proper explanation as to the possession of MO2, this accused and others were arrested. After conducting investigation, the final report was filed. It was taken on file as C.C.No.338/2005. This petitioner was absconding. The other two accused faced trial, they were acquitted by the learned Magistrate. 2. Learned counsel for the petitioner would submit that on going through the judgment it can be seen that Crl.M.C. No.3524 of 2011 -: 2 :- there is no evidence to proceed against this petitioner also and as such the learned counsel submits that further proceeding in this case may be quashed. In Moosa v. Sub Inspector of Police reported in [2006 (1) KLT 552 (F.B)] it was held : “When the absconding accused is apprehended and tried later the court has necessarily to consider the legally available evidence and cannot adopt the easy course of acquittal on the premise that the co-accused was acquitted. So long as no inconsistencies or contradictions or infirmities were brought out to discredit the witnesses merely because the co-accused was acquitted in the prior trial, case against the absconding accused cannot be thrown out. The case against the absconding accused should be tried and decided on its own evidence unless the evidence was specially recorded under S.299 Cr.P.C. The power under S.482 Cr.P.C. cannot be invoked to prevent the trial of the accused solely by referring to the overt act played by the accused as spoken to by witnesses in the case of the co-accused and cannot in exercise of its jurisdiction under S.482 Cr.P.C. quash the proceedings and prevent the trial.” The fact that other two accused were acquitted by the learned Magistrate is not a reason to quash the case against Crl.M.C. No.3524 of 2011 -: 3 :- the absconding accused. It was the petitioner who was riding the motorcycle. He was arrested by the police; of course, stated to be under Sec.41(1)(d) of Cr.P.C. Subsequently the charge sheet was laid under Sec.379 r/w 34 IPC. Since only the other two accused faced trial, it cannot be said that there is no incriminating circumstance against this accused since that was not something to be produced by the prosecution when this accused was not facing the trial. Any way, in the light of the Full Bench decision cited supra, I am not inclined to quash further proceeding in the aforesaid crime as against this petitioner. Hence, this Crl.M.C. is dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt