IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3000 of 2006()
1. C.O. THOMASKUTTY, CHAMATHARA HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/10/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.3000 OF 2006
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Dated 21st October, 2010
O R D E R
Petitioner is the second accused
in C.C.167/2006 on the file of Judicial
First Class Magistrate’s Court-III,
Kottayam, taken cognizance for the offences
under Sections 109, 465 and 420 read with
Section 34 of Indian Penal Code. Petition is
filed under Section 482 of Code of Criminal
Procedure to quash the proceedings against
the petitioner contending that on the
materials, the offences are not attracted.
Subsequent to the filing of Crl.M.C first
accused was tried by Judicial First Class
Magistrate, Kottayam and by Annexure-C
judgment dated 30/4/2010 first accused was
acquitted.
Crmc 3000/06
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2. Learned counsel appearing for the
petitioner and learned counsel appearing for
the second respondent, de facto complainant
were heard.
3. Learned counsel relying on
Annexure-C judgment argued that case against
the petitioner is that he abetted first accused
and first accused forged concession cards and
thereby committed the offences under Sections
109, 465 and 420 read with Section 34 of Indian
Penal Code and after trial, first accused who
allegedly forged the document was acquitted
and therefore, prosecution against petitioner
for abetting first accused committed offence
will not stand and therefore, the proceedings
is to be quashed. Reliance was placed on the
decision of the Full Bench of this Court in
Moosa v. Sub Inspector of Police (2006 (1) KLT
Crmc 3000/06
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552) and argued that finding that judgment of
acquittal of co-accused cannot be looked into
is not applicable when from substratum of the
case is found against in Annexure-C judgment.
Learned counsel pointed out that Crl.M.C is
not filed based on the failure of the
substratum of the case, consequent to the
acquittal of the first accused but on the
ground that materials relied on by the learned
Magistrate to take cognizance, is insufficient
to proceed against the petitioner.
4. On hearing the learned counsel
appearing for the petitioner and second
respondent, I do not find it for this Court to
quash the proceedings as sought for on
analyising the materials produced and finding
that there is no material to connect the
petitioner with the offences or based on the
Crmc 3000/06
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subsequent decision taken by the learned
Magistrate after trial of the first accused.
Petitioner is entitled to raise all the
contentions before the learned Magistrate and
seek an order of discharge under Section 239 of
Code of Criminal Procedure, as it is submitted
that charge against the petitioner has not been
framed. Learned counsel appearing for the
petitioner then submitted that presence of the
petitioner may not be insisted for the purpose
of claiming an order of discharge and the
learned Magistrate may be directed to consider
effect of the acquittal of the co-accused and
factum of substratum of the case, while
considering the question whether petitioner is
to be discharged or not. If an application is
filed under Section 205 of Code of Criminal
Procedure to dispense with the presence of the
Crmc 3000/06
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petitioner for the purpose of claiming
discharge under Section 239 of Code of Criminal
Procedure, learned Magistrate not to insist for
the presence of the petitioner for that limited
purpose. Petitioner is entitled to raise all
the contentions raised herein before the
learned Magistrate.
Petition is disposed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.