IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.MC.No. 1760 of 2004() ------------------------- CC.861/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... PETITIONER: ------------ PRASANNAN, S/O. SADANANDAN, RINKU BHAVAN, MELATTINGAL, KEEZHATTINGAL VILLAGE. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI 1st RESPONDENT: COMPLAINANT: ---------------------------------- 1. LATHIKA, D/O. SARASAMMA, RINKU BHAVAN, MELATTINGAL, KEEZHATTINGAL. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/07/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.7588/04 IN CRL.M.C.NO.1760/04 DISMISSED 31.7.2008 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.1760 OF 2004 ----------------------------------------------------- DATED THIS THE 31st DAY OF JULY, 2008 O R D E R Petitioner is the 1st accused in C.C.No.861/01 before the Court of Judicial First Class Magistrate, Varkala. The case is filed against the petitioner and four other accused on the basis of a private complaint filed by the first respondent herein who is the complainant, for the offence punishable under sections 494, 108 and 109 of IPC. This petition is filed under Section 482 of Cr.P.C. by the petitioner herein with the prayer to “quash Annexure A complaint in C.C.No.861/01 now pending before the Judicial First Class Magistrate's Court, Varkala against A1 as C.C.No.219/04”. 2. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioner that accused Nos.2 to 5 were discharged by the learned Magistrate under Section 245(1) of Cr.P.C. True photocopy of that judgment in C.C.No.861/01 is produced as Annexure B. The grounds mentioned in this petition is that there Crl.M.C.1760/04 -2- is no sufficient pleadings and the ingredients under Section 494 of IPC to hold a second marriage by the petitioner and the complainant. Therefore there is no prima facie case to constitute an offence against the petitioner and the petitioner is entitled to get an order of this Court by invoking the inherent power under Section 482 of Cr.P.C. to quash the complaint , a copy of which is produced as Annexure A. 3. The prayer in this petition is opposed by the learned Public Prosecutor. It is submitted by the learned Public Prosecutor that the point is decided by the Full Bench of this Court in Moosa V. Sub Inspector of Police (2006 (1) KLT 552(FB)) wherein it is held that acquittal of some of the accused after trial will not entitle co-accused for an acquittal invoking the inherent power under Section 482 of Cr.P.C. It is held in that decision that the power under Section 482 of Cr.P.C. cannot be invoked to prevent the trial of the accused. So, only by referring to the overt act played by the accused as spoken to by the witnesses in the case of the co-accused, this Court cannot in exercise of its jurisdiction under Section 482 of Cr.P.C. quash the proceedings and prevent the trial. The legal position has been summarised in clauses (v), (vii), (viii) and (ix) of paragraph 53, in the above said decision, which reads as follows: Crl.M.C.1760/04 -3- (v)In a trial against the co-accused the prosecution is not called upon, nor is it expected to adduce evidence against the absconding co-accused. In such trial the prosecution cannot be held to have the opportunity or obligation to adduce all evidence against the absconding co-accused. The fact that the testimony of a witness was not accepted or acted upon in the trial against the co-accused is no reason to assume that he shall not tender incriminating evidence or that his evidence will not be accepted in such later trial. (vii) The judgment of acquittal of a co-accused in a criminal trial is not admissible under Ss.40 to 43 of the Evidence Act to bar the subsequent trial of the absconding co-accused and cannot hence be reckoned as a relevant document while considering the prayer to quash the proceedings under S.482 Cr.P.C. Such judgments will be admissible only to show as to who were the parties in the earlier proceedings or the factum of acquittal. (viii) While considering the prayer for invocation of the extraordinary inherent jurisdiction to serve the ends of justice, it is perfectly permissible for the court to consider the bona fides – the cleanliness of the hands of the seeker. If he is a fugitive from justice having absconded or jumped bail without sufficient reason or having waited for manipulation of hostility of witnesses, such improper conduct would certainly be a justifiable reason for the court to refuse to invoke its powers under S.482 of the Code of Criminal Procedure. (ix) The fact that the co-accused have secured acquittal Crl.M.C.1760/04 -4- in the trial against them in the absence of absconding co-accused cannot by itself be reckoned as a relevant circumstance while considering invocation of the powers under S.482 of the Code of Criminal Procedure. In the light of the dictum laid down in the above said decision, which is squarely applicable to the facts of this case, I find that this Court cannot exercise the inherent jurisdiction under Section 482 of Cr.P.C. and there is no merit in this petition. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn