IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 Crl.MC.No. 2752 of 2008() ------------------------- AGAINST THE ORDER DATED / / IN LPC 15/1998 IN CC.518/1997 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... PETITIONER: ------------ SUDHEESN, AGED 42, S/O. SURENDRAN, ATHIKAMPOIL, KATHIROOR AMSOM DESOM, KOOTHUPARAMBU. BY ADV. SRI.C.V.MANUVILSAN SRI.E.C.BINEESH RESPONDENTS: ------------- STATE OF KERALA, REP. BY THE S.I. OF POLICE, PANUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2752 of 2008 ------------------------------------------------- Dated this the 11th day of August, 2008 ORDER The petitioner, along with the co-accused, faced indictment as 5th accused in a prosecution for offences punishable, inter alia, under Secs.448 and 427 read with Sec.149 IPC and Sec.3(1)(c) of the PDPP Act. 2. The crux of the allegations against the petitioner is that he, along with the co-accused - altogether there were 10 accused persons, was the member of an unlawful assembly of persons, who, in prosecution of their common object, trespassed into the office premises of the Kathiroor Co- operative Housing Society and indulged in wanton acts of mischief and violence. Investigation was completed. Final report was filed. All other co-accused, except the petitioner (A5) and another (A6), were available for trial. At the end of Crl.M.C. No. 2752 of 2008 -: 2 :- the trial, accused 1 to 4 and 7 to 10 were found not guilty and acquitted. The de facto complainant in the complaint had not named the accused persons. But, in the course of 161 examination, he as well as another (P.Ws.1 and 2) had identified the accused persons, including the petitioner herein. It is on the basis of such statements of P.Ws.1 and 2 that the final report was filed. 3. The petitioner prays that the proceedings against him may be quashed invoking the jurisdiction under Sec.482 Cr.P.C. What is the reason? The learned counsel submits that inasmuch as P.Ws.1 and 2 did not support the prosecution case at all and went on to say that they have not seen any incident whatsoever, it would be idle to continue the prosecution against the petitioner on the basis of the sworn statements of P.Ws.1 and 2 especially when P.W.1, who lodged the First Information Statement, had not named any accused persons in the First Information Statement. 4. This application is opposed by the learned Public Prosecutor. I find merit in the opposition. The decision in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) is Crl.M.C. No. 2752 of 2008 -: 3 :- authority for the proposition that the testimony of the witnesses in the trial against the co-accused cannot confer any benefit or advantage on the absconding co-accused. 5. The petitioner was not available before court in such trial and there was no question of adducing any evidence against the petitioner. The mere fact that P.Ws.1 and 2 – the only eye witnesses cited, turned hostile in the trial against the co- accused is, it is now trite by itself, no ground to invoke the jurisdiction under Sec.482 Cr.P.C. At the time of admission of this case, it would appear that there was some doubts entertained by the court as to whether the dictum in Madhan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287) would apply or not and, it appears, that was the reason why this Crl.M.C. was admitted. It is now conceded at all hands that the dictum in Madhan Mohan Abbot has no application whatsoever to the facts of this case. 6. I am satisfied, in these circumstances, that this is not a fit case where the proceedings against the petitioner deserves to be terminated prematurely by invocation of the powers under Sec.482 Cr.P.C. The petitioner must appear before the learned Crl.M.C. No. 2752 of 2008 -: 4 :- Magistrate and seek discharge or acquittal as the case may be at the appropriate stage. 7. In the result, this Crl.M.C. is dismissed. I may hasten to observe that I have not intended to express any opinion on merits on the allegations raised against the petitioner or on his right to claim discharge/acquittal under the ordinary provisions of the Code. I have only chosen to take the view that the powers under Sec.482 Cr.P.C. do not deserve to be invoked. (R. BASANT, JUDGE) Nan/ Crl.M.C. No. 2752 of 2008 -: 5 :-