IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 Crl.MC.No. 2815 of 2008() ------------------------- CC.1301/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG CRIME NO.198/1997 OF ADHUR POLICE STATION .................... PETITIONER: 13TH ACCUSED ------------ ABDUL RAHIMAN, S/O.PALLAM ABDULLA HAJI, AGED 39 YEARS, KOTTA ROAD, POWAL, MULIYAR VILLAGE, MULIYAR, KASARGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENTS: STATE ------------- THE STATION HOUSE OFFICER, ADHUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2815 of 2008 ---------------------------------------- Dated this the 24th day of July 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable inter alia under Section 3 of the P.D.P.P.Act and Section 332 read with 149 I.P.C. He was arrayed initially as the 13th accused. Some of the co-accused who faced trial were found entitled to acquittal on the basis of the absence of evidence of identification of such accused persons. The petitioner was not available for trial. The case against him has been split up. The petitioner has now come to this court with a prayer that powers under Section 482 Cr.P.C may be invoked to quash the proceedings against him. It is submitted that inasmuch as in the trial against the co-accused, there is no evidence against the accused persons and there is a finding that the witnesses are unable to identify the accused persons, the petitioner is also entitled for the advantage/benefit of the said finding and is consequently entitled to quashing of proceedings against him invoking the jurisdiction under Section 482 Cr.P.C. Crl.M.C.No.2815/08 2 2. I am afraid, this contention cannot be accepted. A Full Bench of this court in Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)] has come to the specific conclusion that an absconding co-accused cannot take advantage of the paucity of evidence and the findings rendered on the basis of the evidence tendered by the criminal court in the trial against the co-accused. An absconding co-accused is not entitled to any such advantage or benefit, it is now trite. 3. The learned counsel for the petitioner has laboriously taken me through the findings in the judgment rendered in the trial against the co-accused. But those findings can apply only to the persons who have participated in the trial. In that trial, the prosecution was not obliged to attempt to introduce evidence against the absconding co-accused including the petitioner. That there is no evidence against the absconding petitioner in that trial when no such evidence was at all expected or intended cannot deliver any advantage to the petitioner. The petitioner must appear before the learned Magistrate and take part in the proceedings. Of course, his option to claim discharge will remain unfettered by the dismissal of this Crl.M.C. Crl.M.C.No.2815/08 3 4. It is submitted that a warrant of arrest issued by the learned Magistrate is chasing the petitioner. There may be a direction to the learned Magistrate to consider the application for bail to be filed by the petitioner on surrender before the learned Magistrate on merits, in accordance with law and expeditiously, submits the learned counsel for the petitioner. I am satisfied that no special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1) KLT 339]. 5. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders before the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R.BASANT, JUDGE) jsr Crl.M.C.No.2815/08 4 Crl.M.C.No.2815/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008