High Court Kerala High Court

C.O. Thomaskutty vs State Of Kerala on 21 October, 2010

Kerala High Court
C.O. Thomaskutty vs State Of Kerala on 21 October, 2010
       

  

  

 
 
  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.

           ---------------------------------------------
           CRL.M.C.NO.3000 OF 2006
           ---------------------------------------------
           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
2

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
3

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
5

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.