IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2033 of 2009()
1. JALEEL, AGED 33 YEARS, S/O.MOIDEEN KUTTY
... Petitioner
Vs
1. CIRCLE INSPECTOR OF POLICE,
... Respondent
2. RAMAKRISHNAN, S/O.VELAPPAN,
3. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.R.O.MUHAMED SHEMEEM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/07/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.2033 of 2009
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ORDER
Petitioner is the third accused in Crime No.
288/2002 Wadakkancherry Police Station. The case as
against the petitioner is now pending as C.P.No.
107/2007 before Judicial First Class Magistrate’s
Court, Alathur. He was absconding when the case as
against other accused was committed. As per
Annexure-3 judgment in S.C.No.926/2005, Assistant
Sessions Judge, Palakkad acquitted the other
accused for offences under Sections 307, 326 and
120B read with Section 34 of Indian Penal Code.
This petition is filed under Section 482 of Code of
Criminal Procedure to quash the case as against the
petitioner contending that in the light of
Annexure-3 judgment, acquitting the co-accused and
finding that there is no conspiracy, petitioner
cannot be convicted, even if he is to be tried.
CRMC 2033/09 2
2. Learned counsel appearing for the petitioner
and learned Public Prosecutor were heard.
3.Learned counsel appearing for the petitioner,
relying on the findings in Annexure-3 judgment of
Assistant Sessions Judge, vehemently argued that
even if petitioner is to undergo trial, he cannot
be convicted for the offences for which the other
accused were tried and acquitted and when
conspiracy is found against and there is no
evidence for commission of offences under Sections
307 and 326 of India Penal Code, no purpose will be
served by directing the petitioner to undergo trial
and therefore, the case is to be quashed.
4. True, Annexure-3 judgment shows that on
evidence let in by prosecution, when the co-accused
were tried, it was found that there was no
acceptable evidence to prove the conspiracy or that
there was an attempt to cause death or causing any
grievous hurt as alleged by prosecution. At the
same time, petitioner was the driver involved in
CRMC 2033/09 3
the incident. Though, under Annexure-3 judgment it
was found that there was no evidence to prove that
petitioner, pursuant to conspiracy, with intention
to cause death to the rider of the motor bike, hit
on the motor bike with the jeep driven by him, on
the facts, I find it not a sufficient ground to
quash the proceedings.
5. The question whether petitioner was rash and
negligent in driving and by such driving caused
hurt to PW9 examined in the earlier case is a
matter which should, necessarily, to be considered
by the court. In such circumstances, the case
cannot be quashed as sought for. Petitioner is at
liberty to raise all the contentions at the stage
of hearing under Section 227 of Code of Criminal
Procedure.
6. Learned counsel appearing for the petitioner
submitted that there may be a direction to the
Magistrate to consider the application for bail.
CRMC 2033/09 4
7. When an absconding accused surrenders and
files an application for bail, learned Magistrate
is expected to pass orders on the application
without delay. Learned Magistrate would definitely
consider the circumstances stated by the petitioner
while considering the application for bail. I find
no reason to believe that Magistrate is unaware of
the provisions of law or the decisions of this
Court or the Apex Court or that Magistrate will not
act in accordance with law. In such circumstances,
no direction is warranted.
Petition is dismissed.
9th July, 2009 (M.Sasidharan Nambiar, Judge)
tkv