IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 3148 of 2008(Y) -------------------------- L.P.4/07 IN S.C. 229/2003 OF THE COURT OF SESSIONS, THALASSERY PETITIONER(S): PETITIONER/A9 ---------------------------- MADHUSOODHANAN, S/O.PADMANABHAN, MANIKOTHU HOUSE, KADAMPOORU P.O., VIA. EDAKKAD, KANNUR (DIST) BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3148 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2009 O R D E R The petitioner faces indictment as the 9th accused as per the final report submitted in Crime No.53 of 1999 of Kannur Town police station. Altogether there are ten accused arrayed in that final report. Accused 1 to 8 and 10 were allegedly members of an unlawful assembly of persons, who indulged in culpable overt acts. Against them allegations were raised under Sections 143, 147, 148, 448, 427 and 307 r/w. 149 I.P.C. There is no allegation against the petitioner that he is in any way involved in the actual commission of the said offences along with the co-accused. As against the petitioner/A9 there is only one specific allegation raised. That allegation is raised under Section 212 I.P.C. It is alleged that after the incident the petitioner had harboured the 8th accused in the crime. It was thus that the allegation under Section 212 I.P.C. and no other allegation was raised against the petitioner. Crl.M.C.No. 3148 of 2008 2 2. The petitioner was not available for trial. Against the available co-accused, including the 8th accused, trial proceeded. By judgment dt.3.2.2007 in S.C.229 of 2003 the learned Addl. Asst. Sessions Judge, Tellicherry found the co-accused who stood trial (including A8) not guilty of the offences alleged against them. Accordingly those co-accused, including A8, were found not guilty and acquitted. The case against the petitioner has been split up. The petitioner has not surrendered before the court below so far. 3. The learned counsel for the petitioner submits that in the light of the acquittal of A8, the bottom is knocked out of the charge levelled against the petitioner and the petitioner cannot now be found guilty of any offence punishable under Section 212 I.P.C. In as much as the 8th accused has been found not guilty and acquitted he cannot be reckoned as an offender nor can it be assumed that the petitioner had knowledge that the 8th accused was involved in any offence. In these circumstances the acquittal of the co-accused/A8 must entitle the petitioner to the quashing of proceedings, urges the learned counsel. Crl.M.C.No. 3148 of 2008 3 4. I find merit in the submission of the learned counsel for the petitioner. The learned Prosecutor only submits that the petitioner having not appeared before courts for such a long period of time, the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. need not be invoked in his favour. 5. The decision of the Full Bench in Moosa v. S.I. of Police (2006(1) KLT 552) has laid down that the mere acquittal of the co- accused on the basis of the evidence adduced in the trial against them cannot ipso facto entitle the absconding co-accused for any benefit/advantage. But even going by the dictum in Moosa, there can always be a class of cases where the acquittal of the co-accused may knock the bottom out of the case alleged by the prosecution and makes further prosecution against the absconding co-accused totally unnecessary and irrelevant. I must take the view that in the facts and circumstances of this case, where the precise allegation against the petitioner is only that he harboured the 8th accused, an offender, the acquittal of the said 8th accused in the trial held against him must entitle the petitioner to an order under Section 482 Cr.P.C. quashing the Crl.M.C.No. 3148 of 2008 4 proceedings against him. Continuance of the prosecution against the petitioner would be an empty formality, which is not the purpose to serve, the very foundation of the alleging having already been shown to be non-existent. 6. I am satisfied that the petitioner is entitled for the reliefs claimed, notwithstanding the fact that the petitioner has not been appearing before the court below all along. The prosecution against him can be brought to premature termination. Of course, if there be any proceedings against the petitioner for non-appearance, such proceedings can continue. 7. In the result: a) This Crl.M.C. is allowed. b) The surviving prosecution against the petitioner pending before the Court of Sessions, Tellicherry on the basis of the final report submitted by Kannaur Town police station in Crime 53 of 1999 raising allegations against him under Section 212 I.P.C. is hereby quashed. Crl.M.C.No. 3148 of 2008 5 c) The learned Magistrate shall take necessary steps to make necessary entries in the relevant registers to signify the fact of quashing of proceedings. d) Needless to say, proceedings, if any, pending against the petitioner and his sureties under section 446 Cr.P.C. shall be disposed of by the learned Magistrate in accordance with law. (R. BASANT) Judge tm