IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 Crl.MC.No. 1709 of 2009 ---------------------------------- CC.NO.216/2005 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY. .................... PETITIONER/ ACCUSED: ----------------------------------- MAHESH K.M., AGED 34 YEARS, S/O.KUMARAN, K.V.HOUSE, THAZHE CHOVVA, KANNUR. BY ADVS. SMT.K.K.CHANDRALEKHA, MR.GOPAKUMAR G. (ALUVA). RESPONDENT/ COMPLAINANT & DEFACTO COMPLAINANT: -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VINOD V.C., S/O.KUNJURAMAN, AGED ABOUT 25, VALIYACHALIL HOUSE, P.O.KADACHIRA, KANNUR. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1709 of 2009 ================== Dated this the 12th day of June, 2009. O R D E R Petitioner is the absconding first accused in C.C.No. 216/2005 on the file of Additional Chief Judicial Magistrate, Thalassery. Second accused was tried by the Magistrate after splitting the case as against the petitioner. As per Annexure B judgment dated 20-5-2006, second accused was acquitted of the offences under Sections 447 and 506(i) read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings as against the petitioner contending that in view of Annexure B order, petitioner cannot be convicted and therefore no fruitful purpose will be gained by directing petitioner to undergo the ordeal of a trial and in such circumstances the case is to be quashed. 2. Learned Counsel appearing for the petitioner was heard. Crl.M.C.No.1709/2009 -2- 3. The argument of the learned Counsel is that the offence under Section 447 of Indian Penal Code will not lie in the light of the order of injunction passed by the civil court which was taken note by the Magistrate under Annexure B judgment and therefore the case is to be quashed. The fact that the co-accused was acquitted is not a ground for quashing the proceedings against the main accused under Section 482 of Code of Criminal Procedure. While invoking the inherent jurisdiction of this court for quashing the proceedings, the evidence which would be available to the accused at the time of trial cannot be looked into. Learned Counsel appearing for petitioner argued that when the subtractum of prosecution case has been found against in Annexure B judgment, the case is to be quashed. I cannot agree with the submission on the facts of this case. The acquittal in Annexure B judgment was based on the evidence let in that case as against that accused. The question whether petitioner could be convicted or not Crl.M.C.No.1709/2009 -3- depends on the evident to be let in. Hence on that ground the case cannot be quashed as sought for. 4. Learned Counsel for the petitioner then submitted that a direction be issued to the Magistrate to consider the application for bail when moved on the date of his surrender. An absconding accused, who did not make himself available for trial three years, is not entitled to get a direction to the Magistrate to consider the application for bail to be moved on the date of his surrender. When an accused surrenders before the Court and files an application, the Magistrate is expected to pass orders on the application without delay. I do not believe that the Magistrate is unaware of the provisions of law or the decisions of this court and the Apex Court on the point. Hence no direction as sought for by the petitioner also warranted. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr