IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 Crl.MC.No. 4075 of 2005 ------------------------- CC.862/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... PETITIONER: ------------ 1. SHARAFU, S/O.CHALIL HAMEED, MANATHALA BEACH, MANATHALA AMSOM DESOM, TRICHUR DISTRICT. 2. HANEEFA, S/O. PILAKKAL MOIDU, CHAVAKKAD DESOM, TRICHUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: ------------- STATE OF KERALA, (CIRCLE INSPECTOR OF POLICE, CHAVAKKAD, CRIME NO. 216/1992 OF CHAVAKKAD POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. KAMMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON 18-7-2008 PASSED THE FOLLOWING: CRL.M.A. NO. 14813/2005 IN CRL.M.C. NO. 4075/2005 DISMISSED. 18-7-2008 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI,JJ ============================== CRL.M.C.NO. 4075 OF 2005 ============================ DATED THIS THE 18th day of July 2008 ORDER Petitioners 1 and 2 were implicated as accused Nos.14 and 16 respectively in Crime No.216/92 of Chavakkad police station for the offences punishable under Sections 143, 147, 153,153A,295(A) read with Section 149 of the Indian Penal Code and the same was taken on file as C.C.No.360/1995 of the Judicial First Class Magistrate Court, Chavakkad. A copy of the F.I.R.is produced as Annexure-I and the copy of the charge sheet dated 26-7-1995 is produced as Annexure- 2. Out of 26 accused persons, only accused Nos.2,4,15,19,21,23,25 and 26 faced the trial before the learned Magistrate in C.C.No.360/95 and were acquitted under Section 248(1) of the Code of Criminal procedure as per judgment dated 25-5-1998 which is produced as Annexure-3. The case against accused 1,3,5 to 14,16 to 18, 20, 22 and 24 was split up and refilled as C.C.No.388/98. Subsequently, the third accused in the above crime, who was renumbered as 2nd accused in C.C.No.388/1998, surrendered before the trial court and faced the CRL.M.C.NO. 4075/2005 -2- trial. Considering the evidence on record, the learned Magistrate has acquitted the third accused in Crime No.216/1992 under Section 248 (1)of the Code of Criminal Procedure. The case against the remaining accused was refilled as C.C.No.862/2000 as revealed from Annexure- 4, judgment dated 14-9-2000 in C.C.No.388/1998. In view of the judgments produced as Annexures 3 and 4, the present petition is filed by the petitioners, who are accused Nos.14 and 16 respectively in Crime No.216/92 under Section 482 of the Code of Criminal procedure with a prayer to quash the proceedings against them in C.C.No.862/2000. 2. Heard the learned counsel appearing for the petitioners and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioners that even if the charge against the petitioners are tried, there is no likelihood of proving the same as the independent prosecution witnesses already examined before the trial court turned hostile and some of the accused persons in the same crime were acquitted as revealed from Annexures 3 and 4 judgments of the trial court. It is also submitted by the learned counsel for the petitioners that the finding of the court below in the above mentioned judgments is that the prosecution failed to prove the allegations and so the CRL.M.C.NO. 4075/2005 -3- continuance of prosecution against the petitioners will be a sheer waste of judicial time and in the interest of justice, the continuance of the proceedings against them will be an abuse of process of law and is liable to be quashed. 4. It is submitted by the learned Public Prosecutor that the point to be decided in this petition is covered by the decision in Moosa v. Sub Inspector of Police, 2006(1)K.L,.T.552 wherein it is held by the Full Bench of this Court that acquittal of some of the accused after trial will not entitle co-accused for an acquittal invoking the inherent powers under Section 482 of the Code of Criminal procedure. 5. It is held in the aforementioned decision that the power under S.482 Cr.P.C.cannot be invoked to prevent the trial of the petitioners/accused solely by referring to the overt act played by the accused as spoken to by the witnesses in the case of the co-accused and this court cannot in exercise of its jurisdiction under S.482Cr.P.C.quash the proceedings and prevent the trial. Hence the dictum laid down in Arun Kumar's case to the extent it has taken a contrary view of what is stated above, is not a correct law and the same is overruled. The legal position has been summarised also wherein clauses (v),(vii)(viii), (ix) read as follows: (v)In a trial against the co-accused the prosecution is not called upon, nor is it expected to adduce evidence against the CRL.M.C.NO. 4075/2005 -4- 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 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 CRL.M.C.NO. 4075/2005 -5- of Criminal Procedure. 6. 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 the Code of Criminal Procedure and there is no merit in this petition. In the result, the Crl.M.C.is dismissed. M.C. HARI RANI JUDGE ks.