IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 Crl.MC.No. 1859 of 2008() ------------------------- ST.1256/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... PETITIONER: 1ST ACCUSED: ------------------------------ BHADRAKUMAR, S/O. BHARGAVAN, PARANKIMAMVILA VEEDU, EZHUKONE CHERRI, EZHUKONE VILLAGE. BY ADV. SRI.B.KRISHNA MANI SMT.M.R.ANUPAMA RESPONDENTS: COMPLAINANT: ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PARAVOOR. 2. THE STATE OF KERALA 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 18/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 1859 OF 2008 ----------------------------------------------- Dated this the 18th day of June, 2008 O R D E R Petitioner is the first accused and he faced indictment along with two others in a prosecution under the Kerala Abkari Act. The petitioner was not available for trial. The trial against the co- accused proceeded. They were found not guilty and acquitted. Petitioner claims that he is entitled to quashing of the proceedings. Petitioner contends that his case must definitely fall outside the sweep of the direction in the Division Bench judgment in Moosa V. Sub Inspector of Police [2006(1) KLT 552] 2. I have been taken through the judgment of acquittal rendered in favour of the co-accused and the same is produced as Annexure A3. A careful reading of the judgment of acquittal clearly reveals that it was rendered on the basis of the crucial fact that the detecting officer, who had himself proceeded to conduct the investigation, had not been examined by the prosecution. The absconding co-accused, it is by now trite cannot claim any advantage or benefit from the acquittal of the co-accused on the Crl.M.C. No. 1859 OF 2008 2 ground that vital and relevant witness could not be made available for examination in such trial against the co-accused. Petitioner cannot hence claim to fall outside of the sweep of the dictum in Moosa(supra) The prayer has to be turned down. 3. I must hasten to observe that this judgment will not in any way fetter the right of the petitioner to take up all defences and claim discharge/acquittal from the trial court at the appropriate stage. The said prayer must be considered on merits and an appropriate decision rendered by the trial court. 4. A warrant of arrest is pending against the petitioner, it is submitted. It is for the petitioner to surrender before the learned Magistrate and seek regular bail. Sufficient general directions have been issued in Alice George Vs. Deputy Superintendent of Police [2003 (1) KLT 339]. 5. In the result, this petition 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 Crl.M.C. No. 1859 OF 2008 3 proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. No further and specific directions appear to be necessary. R. BASANT, JUDGE ttb Crl.M.C. No. 1859 OF 2008 4 Crl.M.C. No. 1859 OF 2008 5