M.K. Manzoor vs Vinoy and State of Kerala and Others

M. Sasidharan Nambiar, J.—Petitioner was the fourth accused in C.C. No. 543/2001 on the file of Additional Chief Judicial Magistrate''s Court, Thiruvananthapuram. As he was absconding along with the seventh accused, case against them was split up and re-filed as C.C. No. 242/2008. Accused 1 to 3, 5, 6 and 8 to 10 were tried. By Annexure-I judgment, those accused were acquitted. Defacto complainant challenged the order of acquittal before Sessions Court, Thiruvananthapuram in Crl.R.P. No. 97/2008. By Annexure-III order, revision was dismissed. This petition is filed u/s 482 of Code of Criminal Procedure contending that when out of the ten accused, eight were already acquitted and the order of acquittal was confirmed in revision, no purpose will be served by directing the Petitioner to undergo the ordeal of a trial and therefore, the case is to be quashed.

Learned Counsel appearing for the Petitioner and learned Public Prosecutor were heard.

Argument of the learned Counsel appearing for the Petitioner is that in the light of the findings in Annexure-I judgment and Annexure-III order, even if Petitioner is to be tried, there is no likelihood of any conviction at all and the trial would result only in unnecessary waste of valuable time of the court and therefore, the proceedings is to be quashed.

Learned Public Prosecutor pointed out that as held by the Full Bench of this Court in Moosa Vs. Sub Inspector of Police, , based on an order of acquittal against a co-accused, the case against an absconding accused cannot be quashed. Though learned Counsel appearing for the Petitioner argued that in view of Annexure-I judgment and Annexure-III order, case against the Petitioner cannot be successfully prosecuted, based on the judgment acquitting a co-accused, case against the Petitioner, an absconding accused, cannot be quashed. Petitioner is entitled to raise all the contentions before the learned Magistrate and seek an order of discharge.

Learned Counsel then submitted that presence of the Petitioner may be dispensed with for the purpose of claiming discharge u/s 239 of Code of Criminal Procedure.

In the light of the order of acquittal against eight accused out of ten accused, if Petitioner files an application for discharge u/s 239 of Code of Criminal Procedure and seeks permission for exemption, learned Magistrate not to insist for his presence for the purpose of claiming discharge u/s 239 of Code of Criminal Procedure.

Petition is disposed.