IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 Crl.MC.No. 4006 of 2009() ------------------------- CC.41/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... PETITIONER(S): ACCUSED ---------------------- SHABU, S/O.BHASKARAN, PALLISSERY HOUSE, VELOOR VILLAGE AMSOM, WADAKKANCHERY, THALAPPILLY TALUK. PRESENTLY RESIDING AT AWAFI FOODSTUFFS CO. L.L.C. P.O.BOX NO.41165, SHARJAH-U.A.E. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENT(S): --------------- STATE OF KERALA, THROUGH SUB INSPECTOR OF POLICE, ERUMAPETTY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4006 OF 2009 ------------------------------------------ Dated 22nd December 2009 O R D E R Petitioner is the tenth accused in C.C.126/2005 on the file of Judicial First Class Magistrate, Wadakkanchery, now pending as C.C.41/2009. Prosecution case is that twelve accused formed themselves into an unlawful assembly, on 8/11/2004 between 10.45 and 11.35 a.m in connection with a harthal, committed riot and held a procession along Veloor-Chungam road, disregarding the orders passed by this court and thereby committed offences under Sections 143, 147 and 188 read with Section 149 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the Crmc 4006/09 2 petitioner contending that when all the remaining accused were acquitted by Annexure-I judgment, when case as against the petitioner is only that he was also one among the members of the unlawful assembly and when there is no likelihood of a successful prosecution, and trial would only result in unnecessary waste of valuable time of the court, proceedings against the petitioner is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel argued that when prosecution case is that petitioner was only one among the members of the unlawful assembly and all the remaining members of the unlawful assembly were acquitted by Crmc 4006/09 3 Annexure-I judgment, no fruitful purpose will be achieved by directing the petitioner to undergo the ordeal of a trial and on the other hand, it would only cause unnecessary waste of valuable time of the court. Learned counsel also argued that learned Magistrate should not have taken cognizance of the offence under Section 188 of Code of Criminal Procedure in violation of the provision of Section 195 of Code of Criminal Procedure and therefore, it is to be quashed. 4. On hearing the learned counsel, I do not find any reason to quash the proceedings as sought for by the petitioner. Petitioner was absconding when the co-accused were tried. As held by the Full Bench in Moosa v. Sub Inspector of Police Crmc 4006/09 4 (2006(1) KLT 552), judgment of acquittal of the co-accused can only be looked into, in a petition filed under Section 482 of Code of Criminal Procedure, to find who were the parties therein. Finding in that judgment cannot be utilised by the absconding accused to get the case as against him quashed. Therefore, based on Annexure-I judgment, case as against petitioner cannot be quashed. Petitioner is entitled to raise all the contentions before the learned Magistrate including the question under Section 195 of Code of Criminal Procedure. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.