IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 Crl.MC.No. 4417 of 2010() ------------------------------------ CC.421/2008 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY .................... PETITIONER(S): ----------------------- MINIPRABHA,AGED 39 YEARS, W/O.ARIVINDAKSHAN BHASKARAN,FLAT NO.303, SAI BHARATHI HOMES,NEW NALLAKUNTA,HYDERABAD-44, ANDHRA PRADESH. BY ADVS. SRI.JINU JOSEPH SRI.J.ABHILASH RESPONDENT(S)/COMPLAINANT ----------------------------------------------- 1. STATE OF KERLA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. 2. SAROJINIKUTTY,W/O.LATE SUBRAMANIAN NAMBOOTHIRI,THAMARASSERY ILLAM,NEAR PUTHENPURA KAVALA,KADAMURI KARA, VAKATHANAM VILLAGE, KOTTAYAM. 3. T.S.RAJAN MAMBOOTHIRI,S/O.LATE SUBRAMANIAN NAMBOOTHIRI,THAMARASSERY ILLAM,NEAR PUTHENPURA KAVALA, KADAMURI KARA,VAKATHANAM VILLAGE,KOTTAYAM. 4. PRASEELA.T.S,D/O.LATE SUBRAMANIAN NAMBOOTHIRI,THAMARASSERY ILLAM,NEAR PUTHENPURA KAVALA, KADAMURI KARA,VAKATHANAM VILLAGE,KOTTAYAM. R1 BY PUBLIC PROSECUTOR SRI. P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4417 OF 2010 =========================== Dated this the 1st day of December,2010 ORDER Petitioner was the second accused in C.C.1026/1998 on the file of Judicial First Class Magistrate, Changanassery. As petitioner was absconding, case against her was refiled as C.C.219/2003 and accused was tried. By Annexure A4 judgment dated 28.2.2003, first accused was acquitted of the offences under section 447, 427 and 294(b) read with section 34 of Indian Penal Code. Petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings now pending against the petitioner as C.C.421/2008 before Judicial First Class Magistrate's Court, Changanassery contending that in view of Annexure A4 judgment acquitting the first accused which was confirmed by Annexure A5 judgment in the revision filed by Crl.M.C.4417/2010 2 de facto complainant, it is not in the interest of justice to continue the prosecution. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As held by the Full Bench of this Court in Moosa v. Sub Inspector of Police (2006(1) KLT 552), an absconding accused is not entitled to get the case against her quashed based on the judgment acquitting the co-accused. Learned counsel then argued that as held by the Full Bench, if the subtractum of the prosecution case is unreliable, the case could be quashed and in the light of the findings, Annexure 4 and 5 judgments it is clear that the subtractum of the prosecution case will not stand. As held by the Full Bench of this court the question of subtractum of the case cannot be decided based on the judgment acquitting the co- accused, as that judgment can only be looked into to find out who are the accused and whether the prosecution ended in conviction or acquittal. Crl.M.C.4417/2010 3 Though learned counsel argued that in view of the decision of the civil court in favour of the petitioner, the prosecution case is to be disbelieved, it is not for this court to appreciate the evidence in exercise of the powers under section 482 of Code of Criminal Procedure. Petitioner is at liberty to raise all the contentions before the learned Magistrate. If charge is not framed, she is entitled to seek an order of discharge under section 239 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006