Dismissed

Marx & 2 Others v. State of Kerala and Another

Kerala HC26 Mar 2010Crl.MC/557/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition seeking quashing of criminal proceedings under Section 482 CrPC. It held that despite acquittal of co-accused, the case cannot be quashed due to the Full Bench decision in Moosa, permitting the petitioners to surrender for discharge and bail instead.

What did the court decide?

Petition disposed; petitioners permitted to surrender and seek discharge under Section 245 CrPC and release on bail.

Marx & 2 Others Vs State of Kerala and Another — Writ and Judicial Review | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932

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Crl.MC.No. 557 of 2010()

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-----------------------AGAINST THE ORDER IN CC.543/2005 IN CC.1318/2008 of JUDL. MAGISTRATE OF FIRST CLASS,CHALAKUDY

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PETITIONERS/ACCUSED 1 TO 3 (FORMERLY A3, 4 AND 5 IN C.C. 543/05)

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MARX, AGED 42, S/O.OUSEPHUNNI, MUNDANMANI HOUSE, VETTILAPARA DESOM, PARIYARAM.

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HOJMIN, AGED 40, S/O.OUSEPHUNNI, MUNDANMANI HOUSE, VETTILAPARA DESOM, PARIYARAM.

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ELIAS, AGED 45, S/O.CHACKO, MUNDANMANI HOUSE, ELAVURKAVALA JUNCTION, KARAYAMPARAMBU.

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BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM

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RESPONDENTS/STATE & COMPLAINANT

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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LONA, S/O.AVARACHAN, ADMINISTRATIVE OFFICER, KERALA STATE PLANTATION CORPORATION, PULLAYIL HOUSE, VETTILAPPARA DESOM, PARIYARAM VILLAGE.

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BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR, J.

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Crl.M.C. No. 557 OF 2010

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Dated this the 26^th day of March, 2010

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O R D E R

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Petitioners are accused 3 to 5 in C.C. No.543/2005 on the

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file of the Judicial First Class Magistrate, Chalakkudy. As they were absconding, the case as against them was split up and refiled as C.C. No.1318/2008. Accused Nos. 1, 2 and 6 were tried. By Annexure-A2 judgment, those accused were acquitted. This petition

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is filed Petition filed under Section 482 of Code of Criminal Procedure, to quash the case as against them contending that in view of the order of acquittal against accused Nos. 1, 2 and 6, even if petitioners are to be tried, there is no likelihood of conviction and therefore the case is to be quashed.

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Learned counsel appearing for the petitioners and learned Public Prosecutor were heard.

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Though by Annexure-A2 judgment, accused Nos. 1, 2 and 6 were acquitted, as held by the Full Bench in Moosa v. Sub Inspector of Police { 2006 (1) KLT 552 (FB)} the case against the absconding accused cannot be quashed, exercising the extra ordinary jurisdiction under Section 482 of the Code of Criminal Procedure, as the judgment in the other case can only be looked

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Crl.M.C.No.557/2010

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into to find out who are the parties therein and whether the prosecution ended in conviction or acquittal. In such circumstances, the case cannot be quashed as sought for. Learned counsel then submitted that petitioners may be permitted to appear before the learned Magistrate and seek an order of discharge and a direction be issued to him to release them on bail.

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When an absconding accused against whom a nonbailable warrant is pending, surrenders and files an application for bail, Magistrate is expected to pass orders in the application without delay. I find no reason to believe that the learned Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that the Magistrate will not act in accordance with law. Hence no direction is warranted. Petitioners are at liberty to surrender and seek an order of discharge under Section 245 of Code of Criminal Procedure.

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Petition is disposed.

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M.SASIDHARAN NAMBIAR (JUDGE)

vps

Crl.M.C.No.557/2010

Crl.M.C.No.557/2010

Marx & 2 Others v. State of Kerala and Another

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Marx & 2 Others v. State of Kerala and Another

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