IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.MC.No. 3920 of 2008() ------------------------- L.P.NO. 28/2008 OF THE SESSIONS COURT, KOLLAM PETITIONER(S): 2ND ACCUSED -------------------------- BINU @ PATTATHIL BINU, S/O.THANKAPPAN, PATTATHIL VEEDU, THAZHAM MIDDLE, CHATHANNOOR P.O., KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.K.J.JOMSON RESPONDENT(S): STATE/DEFACTO COMPLAINANT ---------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3920 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Section 308I.P.C. Altogether there were three accused persons. The petitioner is the second accused. The first accused faced trial. He has been found not guilty and acquitted. The whereabouts of the third accused are not known. The petitioner has come to this Court at this juncture to make a prayer under Section 482 Cr.P.C. to quash the surviving proceedings against the petitioner pending as L.P. 28 of 2008 of the Sessions Court, Kollam. 2. The judgment of acquittal in favour of the first accused is produced as Annex.3. That shows that the allegation is of having caused injury to CW1. The said CW1 was not available when the first accused faced trial. CW2 also could not be traced out. CW3 was examined. He turned hostile. It was thus that the first accused got an order of acquittal. Crl.M.C.No. 3920 of 2008 2 3. It is by now trite that the acquittal of a co-accused cannot by itself a justifiable ground to quash the proceedings against the absconding accused. In the instant case the victim was not available to be examined when the co-accused faced trial. In these circumstances the non-availability of CW1 when the co-accused faced trial cannot certainly be reckoned as sufficient reason to quash the proceedings against the petitioner. Eventhough a submission was made at the Bar that the matter is settled between CW1 and the petitioner and that the powers under Section 482 Cr.P.C. as enabled by the dictum in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19) and Nikil Merchant v. C.B.I. (2008 (3) KLT 769) must be invoked, there is nothing to show that there has been such a composition. The counsel submits that it is now impossible to secure the presence of the CW1 to report composition before this Court. 4. In these circumstances, I am satisfied that following the decision in Moosa v. S.I. Of Police (2006 (1) KLT 552) the prayer for quashing the proceedings on the ground that the co-accused have Crl.M.C.No. 3920 of 2008 3 been acquitted cannot be accepted. No other grounds are shown to justify the prayer to quash the proceedings. 5. This Crl.M.C. is accordingly dismissed. It is submitted that the petitioner has not surrendered before the learned Magistrate. The case against him has been split up and transferred to the list of long pending cases. Needless to say, if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. 6. Hand over the order. (R. BASANT) Judge tm