IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Crl.MC.No. 3024 of 2009 --------------------------------------- CC.102/2003 of JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANUR .................... PETITIONER/4 th ACCUSED: A.S.MAHALINGAM, S/O.SANGAIYA, AGED 52 YEARS, RESIDING IN KAMARAJAR 2ND STREET, BIBIKULAM, MADURAI-625002, TAMIL NADU STATE. BY ADV. SRI.PEARSON S.FERNANDEZ RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, GANDHI NAGAR POLICE STATION, ETTUMANOOR. PUBLIC PROSECUTOR SRI.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3024 of 2009 -------------------------- ORDER Petitioner was the fourth accused in C.C.No. 102/2003 on the file of Judicial First Class Magistrate's Court, Ettumanoor. The case as against the four accused was that they committed offences under Sections 380 and 411 read with Section 34 of Indian Penal Code. As petitioner was absconding, the case as against him was split up and refiled as C.C.No.450/2006. Under Annexure-A1 judgment, learned Magistrate found accused 1 to 3 not guilty of the offences and acquitted them. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that in view of the order of acquittal as against the co-accused, even if petitioner is to be tried, there is no likelihood of a conviction and therefore, the case is to be quashed. CRMC 3024/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioner is that CW7, who, according to the prosecution, conducted further investigation and arrested accused 1 to 3, was not examined when the co-accused were tried in C.C.No.102/2003 and the stolen article was not recovered from the petitioner and therefore, no purpose will be served by directing him to undergo the ordeal of a trial. 4. Even if CW7 was not examined in C.C.No. 102/2003, if his evidence was material, he could be examined when petitioner is to be tried and therefore, on that ground the case cannot be quashed as sought for. Learned counsel then submitted that petitioner did not appear earlier when the other accused were tried, as he was unaware of posting of the case and unless a direction is issued, it is likely that petitioner will be remanded to custody when he surrenders. CRMC 3024/09 3 When an accused surrenders and files an application for bail, it is for the Magistrate to decide whether he is to be released on bail or not. I find no reason to believe that Magistrate will not take the entire facts into consideration while considering the question whether petitioner is to be released on bail or not. Petition is dismissed. 7th October, 2009 (M.Sasidharan Nambiar, Judge) tkv