IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.MC.No. 1332 of 2010() ------------------------------------- CC.112/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, THAMARASSERY .................... PETITIONER/2ND ACCUSED ----------------------------------------- HARIS, S/O.ABDUL JABBAR, AGED 34, FOUR `H' MANZIL, POYIL DESOM, NELESWARAM AMSOM, OMASSERI. BY ADV. SMT.K.V.RESHMI RESPONDENTS/STATE & COMPLAINANT ------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MOIDEEN KOYA, S/O.KOYAKUTTY, VARIPOYIL HOUSE, AGED 34, VELLIPARAMBA DESOM, KUTTIKATTUR AMSOM, KOZHIKODE TALUK. R1 BY PUBLIC PROSECUTOR SMT.M.K PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.MC.No. 1332 of 2010 ORDER ON CRL.M.A.NO.2147/2010 IN CRL.MC.NO.1332/2010 DISMISSED 08/09/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1332 OF 2010 =========================== Dated this the 8th day of September,2010 ORDER Petitioner the second accused in C.C.80/2003 on the file of Judicial First Class Magistrate's Court-II, Thamarassery along with the third accused absconded and the four accused were tried for the offences under sections 323, 324, and 506(ii) read with section 34 of Indian Penal Code. By Annexure B judgment except the absconding petitioner and third accused the other four accused were acquitted. The case as against the petitioner and third accused was refiled as C.C.112/2005 and later included in the L.P register as L.P.25/2008. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings pending against the petitioner contending that in view of Annexure Crl.M.C.1332/2010 2 B judgment whereunder the co-accused were acquitted, no purpose will be served by undergoing the trial as there is no likelihood of a successful prosecution. 2. Though notice was served on the second respondent, he did not appear. 3. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 4. The proceedings as against the petitioner is sought to be quashed based on Annexure B judgment whereunder accused 1, 4, 5 and 6 were acquitted. As held by the Full Bench of this court in Moosa v. S.I. of Police (2006(1) KLT 552) the order of acquittal as against the co-accused cannot be relied on to quash the case as against an absconding accused. Hence based on Annexure B judgment, the case cannot be quashed as sought for. Learned counsel then submitted that petitioner may be permitted to raise all the contentions before the learned Magistrate and seek an order of Crl.M.C.1332/2010 3 discharge. Petitioner is at liberty to surrender and apply for bail and seek an order of discharge under section 239 of Code of Criminal Procedure raising all the contentions raised herein. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006