IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Crl.MC.No. 3103 of 2008() ------------------------- SC.690/2004 of ADDL. SESSIONS COURT (ADHOC), THRISSUR SC.427/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR CRIME NO.321/04 OF MATHILAKAM POLICE STATION .................... PETITIONER: 31ST ACCUSED ------------ VINIL DAS @ VINU, S/O. DEVDAS, PAINATT VEEDU, KUMBALAPARAMBU CENTRE, EDATHIRUTHY VILLAGE. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS: COMPLAINANT ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3103 of 2008 ------------------------------------- Dated this the 14th day of August, 2008 O R D E R Petitioner is the 31st accused in a prosecution for offences punishable, inter alia, under Section 307 r/w 149 I.P.C. The petitioner is employed abroad and he was not available for trial before the Sessions Court. The co-accused who faced trial were found not guilty and acquitted as per Annexure-B judgment. The case against the petitioner was split up and re-filed by the Sessions Court. The same is pending before the Sessions Court now. 2. The petitioner at this stage has come to this Court with a grievance that the surviving prosecution against him may also be quashed in as much as no useful purpose will be served by continuing with this prosecution and counsel submits that in the light of the evidence that was available before the trial court in the trial against the co-accused and in the nature of the findings that have already been entered in such case against the co- accused, it would be unnecessary, irrelevant and nonproductive to continue with the prosecution against the petitioner herein. Crl.M.C. No.3103 of 2008 2 3. The counsel in these circumstances prays that powers under Section 482 Cr.P.C may be invoked to bring to premature termination the surviving prosecution against the petitioner herein. 4. I am afraid. I am unable to accept the contention of the learned counsel for the petitioner. The Full Bench in [Moosa v. Sub Inspector of Police [2006(1) KLT 552] has come to the specific conclusion that an absconding co-accused cannot claim any advantage or benefit on the basis of paucity of evidence and consequent findings entered by the court in such trial against the co-accused. In such trial against the co-accused, the prosecution is not bound to adduce any evidence against the petitioner herein who was not available for trial. 5. I shall not embark on any more detailed discussions, lest it would prejudice the interests of the petitioner in the trial which is to follow. Suffice it to say that I am unable to agree that the petitioner is entitled to invocation of the jurisdiction under Section 482 Cr.P.C. The mere fact that the co-accused were not identified in the earlier trial satisfactorily and consequently they became entitled to an acquittal is no reason for this Court to invoke the powers under Section 482 Cr.P.C and quash the proceedings against the petitioner. Crl.M.C. No.3103 of 2008 3 6. This Crl.M.C is, in these circumstances, dismissed. The petitioner is already on bail in the split up case, submits the learned counsel for the petitioner. I need only observe that the dismissal of this petition will not in any way fetter the rights of the petitioner to claim discharge at the stage of Section 227 Cr.P.C or acquittal at later stages. All contentions available can be raised before the learned Sessions Judge at the appropriate stage by the petitioner. The counsel submits that the petitioner shall not be able to appear in person before the learned Sessions Judge for hearing on the question of charge. I need only observe that for hearing the accused on the question of charge, it is not necessary to insist on the personal appearance of the petitioner and he can be permitted to be represented by his counsel on such dates of posting. (R.BASANT, JUDGE) rtr/-