IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 Crl.MC.No. 4217 of 2010() ------------------------------------ SC.689/2004 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM SC.231/1997 of ASSISTANT SESSIONS COURT, ATTINGAL IN CRIME NO. 9/1993 OF CHIRAYINKEEZHU POLICE STATION ) .................... PETITIONER(S): ACCUSED -------------------------------------- SATHI KUMAR,AGED 37 YEARS, S/O.SADANANDAN,KALLUVILA VEEDU,PERUNKUZHI MUKKU, AZHOOR VILLAGE,THIRUVANANTHAPURAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA,REP.BY THE P.PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, (CRIME NO.9/1993 OF CHIRAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM). BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. -------------------------------------------------------- Crl.M.C No.4217 OF 2010 --------------------------------------------------------- Dated this the 22nd day of November, 2010. O R D E R Petitioner, the 9th accused in Crime No.9 of 1993 on Chirayinkeezhu police station registered for the offences under Sections 143, 147, 148, 323 and 332 r/w 149 of Indian Penal Code and Section 3 of Explosive Substance Act, 1908, out of 16 accused, only accused 2, 3, 5 to 8, 11, 12, 16 and 18 appeared. Hence case as against them was committed to Sessions Court as per order in C.P.No.8 of 1996 after splitting up the case against the absconding accused 1, 4, 9, 13 to 15 and 17. The learned Sessions Judge took the case on file as S.C No. 231 of 1997. The three accused subsequently absconded and case as against them was split up and accused 2, 5 to 8, 11, 12, 16 and 18 were tried by the learned Sessions Judge. By Annexure-1 judgment those accused were acquitted. Subsequently, when presence of the third accused was procured, he was tried in S.C No.689 of 2004. By Annexure-II judgment he was also acquitted. 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 under Annexure-1 and Annexure-II judgments, in the absence of any material against the petitioner, it will only be a futile exercise to try the petitioner. 2. Learned counsel appearing for the petitioner and learned Crl.M.C No.4217 OF 2010 2 Public Prosecutor were heard. 3. Learned Public Prosecutor pointed out that nineth accused is Saji Kumar and not Sathi Kumar, though the address is the same. The learned Public Prosecutor rightly submitted that in view of the decisions of the Full Bench of this Court in Moosa v. Sub Inspector of Police, (2006 (1) KLT 552 (FB)), based on Annexure-1 and Annexure-2 judgment the case against the absconding petitioner cannot be quashed. Petitioner is entitled to raise all his contentions raised herein before the learned Sessions Judge and seek an order of discharge under Section 239 of Code of Criminal Procedure. If petitioner surrenders and files an application for bail, it is for the Magistrate to consider the application on merits without delay. Petitioner is at liberty to bring to the notice of learned Magistrate that 10 out of 16 co- accused were already acquitted. M.SASIDHARAN NAMBIAR, JUDGE. mns