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. 3021 of 2009 --------------------------------------- CC.185/2008 OF JFCM-II, NEYYATTINKARA .............. PETITIONER: FEROSE KHAN, S/O.MUDEENKANNU, AMBALATHUMOOLA KADAYARA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, RAM MOHAN PALACE COMPOUND, ERNAKULAM, COCHIN. PUBLIC PROSECUTOR SRI.AMJAD ALI 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.3021 of 2009 -------------------------- ORDER Petitioner was the second accused in C.C.No. 709/2001 on the file of Judicial First Class Magistrate's Court-II, Neyyattinkara, taken cognizance for the offence under Section 379 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.185/2008. Under Annexure- III judgment, learned Magistrate found the first accused not guilty of the offence and acquitted him. 2. Prosecution case was that on 9.8.2001 at about 3 p.m., in furtherance of their common intention, both the accused committed theft of an Akeshya tree worth Rs.500/- from the property in Survey No.416/1, which was under the custody of Receiver. Annexure-III judgment shows that the complainant, who was examined as PW1, has no CRMC 3021/09 2 personal knowledge about the incident and only on getting information that the tree was found cut, complaint was filed. Though two witnesses were examined as eye witnesses, both of them deposed that they did not witness the incident. There is no other evidence to establish who committed the theft, if at all it was committed. There was no recovery also. It was on that basis, learned Magistrate acquitted the first accused. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case contending that in view of the order of acquittal as against the first accused, there is no likelihood of a conviction and hence, the case is to be quashed. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Though, order of acquittal of a co-accused by itself is not a ground to quash the proceedings as against the absconding accused, Annexure-III judgment makes it absolutely clear that even if CRMC 3021/09 3 petitioner is to be tried, there is no chance for a conviction. Prosecution case is sought to be proved by the evidence of the complainant as well as two eye witnesses. Complainant has already deposed before the court that she did not witness the incident. The eye witnesses also turned hostile and they deposed that they did not know about the incident. In such circumstances, even if the ordeal of a trial is to be undertaken, it will serve no purpose, except wasting of valuable time of the court. Hence, it is not in the interest of justice to continue the prosecution as against the petitioner. Petition is allowed. C.C.No.185/2008 on the file of Judicial First Class Magistrate's Court-II, Neyyattinkara is quashed. 7th October, 2009 (M.Sasidharan Nambiar, Judge) tkv