IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 Crl.MC.No. 2997 of 2008() ------------------------- SC.332/2005 of ADDL.SESSIONS COURT (FAST TRACK-III), TRIVANDRUM .................... PETITIONER/A2: ------------ NASEER S/O.MEERA SAHIB TC 35/790 PUTHENPALAM,VALLAKADAVU, MUTTATHARA THIRUVANANTHAPURAM BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENTS: ------------- 1. THE STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. AL-AMEEN,S/O MUHAMMED MYTHEEN TC 33/1236 PRIYADARSHINI NAGAR, VALLAKADAVU MUTTATHARA, THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN FOR R2 R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2997 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2008 O R D E R The petitioner, along with the co-accused, faced indictment for offences punishable, inter alia, under Sections 324 and 307 r/w. 34 I.P.C. Final report was filed. Cognizance was taken by the learned Magistrate. The case was committed to the court of Sessions. The petitioner was not available for trial. The co- accused, who were available stood trial. They were found not guilty and acquitted as per judgment dt. 14.2.2005 in S.C. 304 of 2002. The petitioner has now come to this Court with a prayer that the co-accused having already been acquitted, the petitioner may also be given the benefit/advantage of the said judgment of acquittal, in which no worthwhile evidence whatsoever was tendered against the accused persons. 2. It is trite now after the decision in Moosa v. S.I. of Police (2006 (1) KLT 552) that an absconding accused cannot Crl.M.C.No. 2997 of 2008 2 claim that benefit or advantage on the basis of the fact that the co- accused have been found not guilty and acquitted because of paucity of evidence in the trial conducted against them. In such trial the prosecution was not bound to or called upon to adduce any evidence against the petitioner. I am, in these circumstances, satisfied that powers under Section 482 Cr.P.C. cannot be invoked in favour of the petitioner on the basis of the acquittal of the co-accused. 3. The learned counsel for the petitioner then submits that in the light of the dictum in Mohan Abbot v. State of Punjab (2008 AIR SCW 2287) the surviving prosecution against the petitioner may be quashed in as much as the victim has compounded the alleged offences committed by the petitioner. The injured/victim/defacto complainant (second respondent herein) has filed an affidavit to confirm that he has compounded the offences allegedly committed by the petitioner. 4. Madan Mohan Abbot (supra) is authority for the proposition that where an offence has been compounded, though non- compoundable, and the offence is one which is private and personal Crl.M.C.No. 2997 of 2008 3 between the parties, the composition of the offence can be taken into consideration when the High Court is called upon to invoke its jurisdiction under section 482 Cr.P.C. That decision is not authority for the proposition that any and every composition of non- compoundable offences can be accepted. Considerable care is called for while applying the dictum in Madan Mohan Abbot (supra). In the instant case it is revealed that it was a case of some political activists attacking their opponents in a public place consequent to political animosity. I am of the opinion that this is not a fit case where the dictum in Madan Mohan Abbot (supra) can safely be imported to terminate the prosecution against the petitioner. 5. This Crl.M.C. is dismissed. It is made clear that the dismissal of this Crl.M.C. will not in any way fetter the rights of the petitioner to raise all relevant contentions before the court below. Needless to say, if the petitioner appears before the learned Judge and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Judge must proceed to pass orders on merits, Crl.M.C.No. 2997 of 2008 4 in accordance with law and expeditiously - on the date of surrender itself. 5. Hand over the order. (R. BASANT) Judge tm Crl.M.C.No. 2997 of 2008 5 R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2997 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2008 O R D E R Heard. Admitted. The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Section 307 r/w. 34 I.P.C. All other offences are compoundable. The co-accused had already been tried, found not guilty and acquitted also. The matter has been settled and the offence has been compounded by the sole victim/R2, it is submitted. The second respondent has entered appearance through counsel to confirm the settlement/composition. 2. The only question is whether invoking the dictum in Madan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287) the proceedings deserves to be quashed under Section 482 Cr.P.C. 3. Notice given. The learned Prosecutor shall take instructions as to whether the State has any objection against the invocation of the powers under section 482 Cr.P.C. Call on 19.8.2008. Crl.M.C.No. 2997 of 2008 6 (R. BASANT) Judge tm