IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 Crl.MC.No. 3000 of 2006(D) -------------------------------------- [CC.NO.167/2006 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM] .................... PETITIONER/ACCUSED NO.2: ------------------------------------------ C.O. THOMASKUTTY, CHAMATHARA HOUSE, KASTHURBA LINE, MUTTAMBALAM VILLAGE, MUTTAMBALAM KARA, KUDAMALOOR, AYMANAM. BY ADVS. SRI.P.VIJAYA BHANU, SRI.PRASUN.S. RESPONDENTS/COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL. R2 IMPLEADED: 2. KOTTAYAM DISTRICT PRIVATE BUS OPERATORS ASSOCIATION, REPRESENTED BY ITS SECRETARY. *IMPLEADED AS ADDL. R2 AS PER ORDER DTD. 27/05/10 IN IN CRL.M.A. NO.2065/10. R1 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD, R2 BY ADV. SRI.MATHEW JOHN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/10/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3000 OF 2006 --------------------------------------------- Dated 21st October, 2010 O R D E R Petitioner is the second accused in C.C.167/2006 on the file of Judicial First Class Magistrate's Court-III, Kottayam, taken cognizance for the offences under Sections 109, 465 and 420 read with Section 34 of Indian Penal Code. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings against the petitioner contending that on the materials, the offences are not attracted. Subsequent to the filing of Crl.M.C first accused was tried by Judicial First Class Magistrate, Kottayam and by Annexure-C judgment dated 30/4/2010 first accused was acquitted. Crmc 3000/06 2 2. Learned counsel appearing for the petitioner and learned counsel appearing for the second respondent, de facto complainant were heard. 3. Learned counsel relying on Annexure-C judgment argued that case against the petitioner is that he abetted first accused and first accused forged concession cards and thereby committed the offences under Sections 109, 465 and 420 read with Section 34 of Indian Penal Code and after trial, first accused who allegedly forged the document was acquitted and therefore, prosecution against petitioner for abetting first accused committed offence will not stand and therefore, the proceedings is to be quashed. Reliance was placed on the decision of the Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT Crmc 3000/06 3 552) and argued that finding that judgment of acquittal of co-accused cannot be looked into is not applicable when from substratum of the case is found against in Annexure-C judgment. Learned counsel pointed out that Crl.M.C is not filed based on the failure of the substratum of the case, consequent to the acquittal of the first accused but on the ground that materials relied on by the learned Magistrate to take cognizance, is insufficient to proceed against the petitioner. 4. On hearing the learned counsel appearing for the petitioner and second respondent, I do not find it for this Court to quash the proceedings as sought for on analyising the materials produced and finding that there is no material to connect the petitioner with the offences or based on the Crmc 3000/06 4 subsequent decision taken by the learned Magistrate after trial of the first accused. Petitioner is entitled to raise all the contentions before the learned Magistrate and seek an order of discharge under Section 239 of Code of Criminal Procedure, as it is submitted that charge against the petitioner has not been framed. Learned counsel appearing for the petitioner then submitted that presence of the petitioner may not be insisted for the purpose of claiming an order of discharge and the learned Magistrate may be directed to consider effect of the acquittal of the co-accused and factum of substratum of the case, while considering the question whether petitioner is to be discharged or not. If an application is filed under Section 205 of Code of Criminal Procedure to dispense with the presence of the Crmc 3000/06 5 petitioner for the purpose of claiming discharge under Section 239 of Code of Criminal Procedure, learned Magistrate not to insist for the presence of the petitioner for that limited purpose. Petitioner is entitled to raise all the contentions raised herein before the learned Magistrate. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.