IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.MC.No. 4650 of 2008() ------------------------- SC.666/2001 of ASSISTANT SESSIONS COURT, PAYYANNUR .................... PETITIONER(S): ACCUSED NOS.3, 8, 10 & 12 --------------- 1. IQBAL, S/O. MOIDEENKUTTY, KUNHIMANGALAM, KANNUR. 2. JABBAR, S/O. ISMAIL HAJI, KUNHIMANGALAM, KANNUR. 3. BASHEER, S/O. HAMEED, KUNHIMANGALAM, KANNUR. 4. SHARFUDHEEN, S/O. ABDUL KAREEM, KUNHIMANGALAM, KANNUR. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4650 of 2008 ------------------------------------- Dated this the 20th day of January, 2009 ORDER Petitioners face indictment in a prosecution for offences punishable under Sections 143, 147, 148, 341, 323, 324, 307 and 153 A r/w 149 I.P.C. Final report has been filed long back. Cognizance was taken by the learned Magistrate. The co- accused in 2 batches have been committed and have faced trial before the Court of Session. All the other accused have by now secured acquittal in the prosecution. The case against the petitioners has been split up and refiled. 2. According to the petitioners, they are not guilty of the offences alleged against them. The co-accused having already been tried and acquitted, the 4 of the petitioners are not liable to face trial for the offences alleged, wherein culpability is said to be attracted with the help of Section 149 I.P.C. It is further submitted that specific overt acts are not alleged against the accused persons. Crl.M.C. No.4650 of 2008 2 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that in the light of the dictum in [Moosa v. Sub Inspector of Police [2006 (1) KLT 552], the petitioners are not entitled to take advantage of any finding in the judgments rendered by courts in the trial against the co-accused. Absconding co-accused cannot be permitted to claim any advantage on the basis of such judgment of acquittal rendered by courts in favour of the accused, who stood trial. Inasmuch as specific allegations of assault are made against the petitioners herein, they must, at any rate, stand trial and advance their contentions before the learned Sessions Judge, submits the learned Public Prosecutor. 4. I have been taken through the impugned judgments. I have been taken through the final report filed and the nature of the allegations raised against the petitioners. On an anxious consideration of all the relevant circumstances, I am not persuaded to agree that this is a fit case where notwithstanding the dictum of the Full Bench in Moosa v. Sub Inspector of Police (supra), the petitioners can be conceded any benefit or advantage on the basis of the judgment of acquittal rendered in favour of the co-accused as per Annexures-IV & V judgments. Crl.M.C. No.4650 of 2008 3 The petitioners must be directed to appear before the court below and take part in the trial. It is submitted at the Bar that all the petitioners have by now appeared before the learned Magistrate. The learned counsel for the petitioners submits that if personal presence of the petitioners were insisted by the court below, that would cause very great hardship and loss to the petitioners. Needless to say, at the appropriate stage the petitioners can apply for exemption from personal appearance and such application of theirs must be considered by the learned Magistrate on merits and in accordance with law. 5. This Crl.M.C is accordingly dismissed with the above observations. (R.BASANT, JUDGE) rtr/-