IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.MC.No. 3458 of 2008() ------------------------- SC.1096/06 of ADDL.ASSISTANT SESSIONS COURT, THALASSERY CRIME NO.15/1993 OF PANOOR POLICE STATION, PANOOR .................... PETITIONER: 2ND ACCUSED: ------------------------ KOTTAYIL PRIYESH, AGED 34 YEARS, S/O.KUNHIKANNAN, KADIRUR, PONNIYAM DESOM, KANNUR DESOM. BY ADV. SRI.B.HARISH KUMAR RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3458 of 2008 ------------------------------------- Dated this the 17th day of September, 2008 ORDER Petitioner as the 2nd accused along with 5 others faced indictment in a prosecution for offences punishable, inter alia, under Section 307 r/w 149 I.P.C. The petitioner was not available when the case was taken up for trial. All the other co- accused faced trial. They were found not guilty and acquitted as per the judgment dated 29.02.1996 in S.C.No.116 of 1994. The case against the petitioner has been split up. The petitioner now faces the prospect of trial/committal. 2. The petitioner at this stage has come to this Court with the plea that powers under Section 482 Cr.P.C may be invoked to quash the proceedings against him. 3. What is the reason ? The short contention raised by the learned counsel for the petitioner is that the relevant witnesses have already been examined in the trial against the co- accused and the learned Judge has come to the finding, which finding has now become final, that the co-accused are not proved to be guilty of the offence alleged against them. The counsel Crl.M.C. No.3458 of 2008 2 submits that there is no specific alleged overt act against the petitioner in the charge sheet filed and in these circumstances continuance of the proceedings against the petitioner will be unnecessary and a sheer waste of time and resources of the Court. 4. I am afraid, the contention cannot be accepted. The decision of the full Bench in [Moosa v. Sub Inspector of Police [2006(1) KLT 552] is authority for the proposition that an absconding co-accused cannot claim any benefit or advantage on the basis of the judgment of acquittal rendered in the prosecution against the available accused on the ground of paucity of evidence in such trial. In such prosecution, the prosecution is not expected to adduce evidence which incriminates an absconding accused. In these circumstances, the fact that in the trial against the available co-accused no incriminating circumstance has been introduced in evidence, is no reason certainly to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C and save the petitioner of the obligation/responsibility to stand trial. I shall not embark on any more detailed discussion. In fact, the judgment dated 29.02.1996 does also indicate that witnesses had alleged specific Crl.M.C. No.3458 of 2008 3 overt act against the petitioner. In any view of the matter, I am not persuaded to agree that the extraordinary inherent jurisdiction does deserve to be invoked in favour of the petitioner. 5. This Crl.M.C is, in these circumstances, dismissed. I may hasten to observe that I have not intended to express any opinion on the complicity of the petitioner. The petitioner shall be at liberty to advance all his contentions before the learned Sessions Judge in the trial to be held against him. (R.BASANT, JUDGE) rtr/-