IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.MC.No. 3881 of 2008() ------------------------- LP.15/2001 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... PETITIONERS: --------------- 1. M.K.FAISAL, AGED 35 YEARS, S/O.AMMAD HAJI, MUNDAKUTTI KELOTH HOUSE, MARUTHONKARA P.O. KAVILUMPARA VIA, KOZHIKODE 673513. 2. MEETHALE MADATHIL ARIF, AGED 35 YEARS, S/O. ALIKUTTY, MEETHALE MADATHIL HOUSE, ADUKKATH P.O., VIA KUTTIADY, KOZHIKODE-673508 BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) RESPONDENT: --------------- STATE OF KERALA, REP.BY STATION HOUSE OFFICER, KUTTIADI POLICE STATION (COMPLAINANT) KUTTIADI, KOZHIKODE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 3881 OF 2008 ----------------------------------------------- Dated this the 17th day of October, 2008 O R D E R Petitioners face indictment in a prosecution for the offences punishable, inter alia, under Sections 124 and 153 A IPC. Altogether there were three accused persons. Petitioners were not available for trial. The co-accused, i.e. 1st accused, had appeared before the court. His case was committed to the court of Session. Trial was conducted. The said 1st accused was found not guilty and acquitted after a full fledged trial under Annexure 3 judgment. 2. Petitioners have now come to this Court with a prayer that powers under Section 482 Cr.P.C may be invoked to quash the prosecution against them. They rely on the acquittal of the co- accused and the evidence available in that case to contend that they are entitled for an order quashing proceedings under Section 482 Cr.P.C. The decision of the Full Bench in Moosa v. Sub Inspector of Police [2006(1) KLT 552] stares at the petitioners and it is now trite that an absconding co-accused cannot attempt to take the advantage of the paucity of evidence in the trial held Crl.M.C. No. 3881OF 2008 -:2:- against the co-accused to found his claim for quashing of proceedings. I am not persuaded to agree that there are any circumstances which should persuade this Court to conclude that this case would fall under that species of cases which can be reckoned as exception to the rule in Moosa(supra). 3. Petitioners have not entered appearance before the committal court so far. The case against them has been split up and transferred to the list of long pending cases. Coercive processes have been issued against them. Such processes are chasing the petitioners. They apprehend imminent arrest. The petitioners are employed abroad. Counsel, in these circumstances, prays that petitioners may be permitted to appear through counsel and claim committal in absentia. 4. I am not persuaded to agree that any such compelling reasons exist to invoke the extra ordinary inherent jurisdiction in favour of the petitioners. Learned Public Prosecutor submits that though one of the accused have come to this court and obtained Annexure 5 order as early as on 22.08.08, the petitioners have not surrendered before the learned Magistrate so far. It is for the Crl.M.C. No. 3881OF 2008 -:3:- petitioners to surrender before the learned Magistrate and seek regular bail. Needless to say, if they surrender and seek regular bail, learned Magistrate must proceed to consider their application for bail on merits, in accordance with law and expeditiously on the date of surrender itself in the light of the decisions in Alice George Vs. Deputy Superintendent of Police [2003 (1) KLT 339] and Sukumary V. State of Kerala [2001(1) KLT 22]. 5. Counsel prays that the petitioners may be permitted to claim discharge under Section 227 Cr.P.C after the case is committed to the court of Session. Petitioners have that right under Section 227 and no specific direction of this Court is necessary to entitle them to claim discharge under Section 227 Cr.P.C. Needless to say, that request will have to be considered by the learned Sessions Judge after committal. R. BASANT, JUDGE ttb Crl.M.C. No. 3881OF 2008 -:4:- Crl.M.C. No. 3881OF 2008 -:5:- Crl.M.C. No. 3881OF 2008 -:6:-