IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 Crl.MC.No. 671 of 2010() ---------------------------------- CC.243/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM. CRIME NO.220/2006 OF SREEKARIYAM POLICE STATION. .................... PETITIONER/ACCUSED --------------------------------- GOPAKUMARAN NAIR, S/O.APPUKUTTAN, AGED 42 YEARS, MANAYIL VEEDU, KAIRALI NAGAR, KARIYAVATTOM WARD, PANJAPPARA VILLAGE. BY ADV. MR.RAJESH P.NAIR RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.671 of 2010 -------------------------- ORDER Petitioner was the fourth accused in C.C.No. 2045/2006 on the file of Judicial First Class Magistrate's Court-I, Thiruvananthapuram. As accused 2 and 4 were absconding, the case as against them was split up and refiled as C.C.No. 148/2008. When the prosecution evidence was recorded and the case was posted for questioning under Section 313 of Code of Criminal procedure, petitioner absconded. Hence, the case as against him was split up and refiled as C.C.No.243/2008. By Annexure-B judgment the original second accused was acquitted. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that as all the other three accused were already acquitted, even if petitioner is to be tried, there is no likelihood of a conviction and therefore, the case is to be CRMC 671/10 2 quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that facts of the case are an exception to the law laid down by a Full Bench of this Court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) and when Annexure-B judgment shows that there is absolutely no evidence, the proceedings is to be quashed. 4. Petitioner, though, originally absconded, later appeared and faced trial in C.C.No.148/2008. Only at the stage, when the case was posted for questioning him along with the other accused under Section 313 of Code of Criminal Procedure, he absconded. Whatever be the reason for absconding, petitioner is not entitled to get the proceedings against him quashed, based on the order of acquittal, as what remains is only questioning him under Section 313 of Code of Criminal Procedure and hearing of the case. If there is no evidence, as CRMC 671/10 3 canvassed by the petitioner, he can only be acquitted. I find no reason to quash the proceedings as sought for. 5. Learned counsel then submitted that as non bailable warrant is pending, he will be remanded on surrender. When an accused surrenders and files an application for bail, it is for the Magistrate to consider whether he is to be released on bail or not, taking into consideration all the relevant facts. If there is no evidence, as claimed by the petitioner, learned Magistrate will dispose the case without delay. Petition is disposed. If petitioner surrenders, Judicial First Class Magistrate-I, Thiruvananthapuram to dispose C.C.No.243/2008 expeditiously. 25th February, 2010 (M.Sasidharan Nambiar, Judge) tkv