CRL.MC No. 4194 of 2009 · Kerala High Court

BY ADVS. MR.T.SETHUMADHAVAN, MR. KODOTH PUSHPARAJAN, MR.JAYESH MOHANKUMAR. RESPONDENT(S): RESPONDENT: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.25/1994 OF TANUR POLICE STATION) BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4194 OF 2009 ------------------------------------------ Dated 14th January 2010

O R D E R Petitioner is the second accused in C.C.459/1994 on the file of Judicial First Class Magistrate, Parappanangadi. As he was absconding, the case as against him was split up and re-filed as C.C.125/1997. It is now pending as L.P.122/1998. The other three accused were tried by the learned Magistrate and by judgment dated 21/2/1997 those accused were acquitted. This petition is filed under Section 482 of Code of Criminal Procedure contending that in view of the order of acquittal as against the other accused, it is not in the interest of justice to continue the prosecution as against the petitioner.

Learned counsel appearing for the petitioner and learned Public Prosecutor were Crmc 4194/09 2 heard.

Argument of the learned counsel is that Annexure-1 judgment shows that learned Magistrate on the evidence found that there was a scuffle between the first accused and the injured and prosecution failed to establish beyond reasonable doubt that the accused are the aggressors. Therefore, the case as against petitioner is to be quashed. It is also submitted that counter case also ended in acquittal.

As held by the Full Bench of this court, based on a judgment whereunder the co- accused are acquitted, an absconding accused is not entitled to get the case against him quashed. Judgment acquitting the co-accused can only be looked into to find out who are the parties to the case and not for the findings or the reason on which those accused were acquitted. Judgment itself shows that there is Crmc 4194/09 3 a specific allegation as against petitioner that he beat the injured with a stick. Though accused 3 and 4 were not originally accused in the case and were impleaded later under Section 319 of Code of Criminal Procedure, there is specific case as against the petitioner at the very inception. Question whether the evidence of the injured and others if tendered against the petitioner could be accepted when it was disbelieved by the learned Magistrate when the remaining accused were acquitted, is a fact to be considered by the learned Magistrate at the time of trial. The case cannot be quashed as sought for based on the order of acquittal as against the other accused. Petition is dismissed. uj. M.SASIDHARAN NAMBIAR, JUDGE.