IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2603 of 2009()
1. ZAKEER,S/O.BEERAVU,
... Petitioner
2. HAMEED,S/O.MUHAMMED,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.K.ABOOBACKER(EDAPPALLY)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/08/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 2603 OF 2009
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Dated 21st August 2009
O R D E R
Petitioners were the absconding accused 3
and 5 in C.C.2856/2002 on the file of Judicial First
Class Magistrate-I, Aluva. Out of eight accused
persons, presence of only the fourth accused could be
procured at the time of trial. Therefore, the case as
against the other accused were split up and re-
filed as C.C.28/2008. Learned Magistrate under
Annexure-A2 judgment, found the fourth accused not
guilty and acquitted him of the offences under
Sections 143, 147, 384 and 34 of Indian Penal Code.
This petition is filed under Section 482 of Code of
Criminal Procedure, to quash the case as against them
contending that in the light of the order of
acquittal of fourth accused under Annexure-A2
judgment, even if petitioners are to be tried, they
cannot be convicted and therefore the case is to be
quashed.
2. Learned counsel appearing for the
petitioners and learned Public prosecutor were heard.
3. Argument of the learned counsel
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appearing for the petitioners is that Pws.1 to 3 the
police officials who were examined in C.C.2856/2002, did
not identify the accused and in such circumstances, even
if they are to be examined again, they will not
identify the petitioners and if that be so, petitioners
cannot be convicted and in such circumstances, in the
interest of justice the case is to be quashed.
4. On hearing the learned counsel, I cannot
agree with the submission. Because of the acquittal
of one of the eight accused, the case as against the
petitioners who were then accused 3 and 5 and absconding
cannot be quashed. Question whether witness would
identify the petitioners herein at the time of trial can
only be decided at the time of recording the evidence.
For the reason that when Pws.1 to 3 were examined
earlier they did not identify the fourth accused, who
alone was facing trial at that time, does not mean that
petitioners will not be identified when they are
examined again. In such circumstances, based on the
order of acquittal of one of the co-accused, the case
as against the petitioners cannot be quashed. Learned
counsel appearing for petitioners then submitted that
learned Magistrate may be directed to dispose the case
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expeditiously. Judicial First Class Magistrate-I, Aluva
is directed to dispose C.C.28/2008 expeditiously.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.