IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 Crl.MC.No. 87 of 2005-A ----------------------- CC.436/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... PETITIONER: ------------ M.ASHRAF, S/O.MOIDU, AGED 33 YEARS, MANCHIPPALLI, PANATHADY VILLAGE. BY ADV. SRI.M.SANTHOSHKUMAR RESPONDENTS: ------------- 1. SUB INSPECTOR OF POLICE, RAJAPURAM, CR.NO. 224/96. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 4-8-2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.N O. 252/2005 IN CRL.M..C. NO. 87/2005 DISMISSED. 4-8-2008 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO.87 of 2005 ====================== Dated this the 4th August 2008 ORDER The petitioner is the accused in C.C.No.436/2004 pending on the file of the Judicial First Class Magistrate's court-I, Hosdurg. This petition is filed under Section 482 of the Code of Criminal Procedure to quash the entire proceedings against the petitioner in C.C.No.436/2004. 2. Heard and perused the entire records. It is alleged in this petition that the petitioner was arrayed as 2nd accused in C.C.No.561/2000 on the file of the Judicial First Class Magistrate Court-I, Hosdurg and accused 1 and 3 to 5 faced the trial and those accused were acquitted by the trial court for the offences charged against them under Sections 143,147,323 read with Section 149 I.P.C. Copy of the judgment in C.C.No.561/2000 dated 24-4-2004 is produced as Annexure-A1. It is alleged in this petition that the petitioner, who was the second accused in CRMC. 87/2005 -2- that case, could not face the trial as he was in Mumbai in connection with his employment. Thereafter, the case against the petitioner herein was split up and refiled as C.C.No.436/2004 on the file of the Judicial First Class Magistrate's Court-I, Hosdurg. It is also alleged in this petition that all the other co- accused were acquitted for want of evidence and all the material witnesses turned hostile to the prosecution. In the circumstances, this petition is filed with a prayer for quashing the proceedings against the petitioner in C.C.No.436/2004 pending before the Court of Judicial First Class Magistrate-I, Hosdurg for the reason that no purpose will be served by proceeding against the petitioner. 3. 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.LT.552 wherein it is held by the Full Bench of this Court that acquittal of some of the accused after trial will not entitle the co-accused for an acquittal invoking the inherent powers under Section 482 of the CRMC. 87/2005 -3- Code of Criminal procedure. 4. 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) of paragraph 53 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 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 CRMC. 87/2005 -4- 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 CRMC. 87/2005 -5- under S.482 of the Code of Criminal Procedure. 5. 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.