IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Crl.MC.No. 4346 of 2005() ------------------------- LP.71/1994 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER: ACCUSED. -------------------- SAKEER, S/O.B.KUNHU BANGALATH, PALATHODUVIL HOUSE, MONGAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: STATE. ----------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. BY PUBLIC PROSECUTOR SHRI P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.15635/05 IN CRL.M.C.4346/05 DISMISSED 06.08.08 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.4346 OF 2005 ----------------------------------------------------- DATED THIS THE 6th DAY OF AUGUST, 2008 O R D E R The petitioner herein is the 3rd accused in C.C.No.422/92 on the file of the Court of the Judicial First Class Magistrate, Malappuram arising out of Crime No.166/92 of Kondotty Police Station, whereby the petitioner and three other accused were charge sheeted for the offences punishable under Sections 323 and 324 read with Section 34 of IPC. It is alleged in this petition that the petitioner was at abroad and could not face trial. Accordingly, the case against the petitioner was split up as C.C.No.420/93 and later transferred to the list of long pending cases and numbered as L.P.C.No.71/94. The prayer in this petition is to quash the entire proceedings in L.P.No.71/94 on the file of the Court of the Judicial First Class Magistrate, Malappuram against the petitioner on the ground that it is an abuse of the process of the court. 2. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. CRL.M.C.No.4346/05 -2- 3. It is submitted by the learned counsel appearing for the petitioner that three other accused faced the trial and after considering the prosecution evidence, all those accused were acquitted as per judgment dated 24.12.1993, a copy of which is produced as Annexure A. According to the learned counsel, even if the petitioner is asked to face the trial, there is no possibility of convicting the petitioner. 4. The prayer in this petition is opposed by the the learned Public Prosecutor and produced the decision reported in Moosa v. Sub Inspector of Police (2006 (1) KLT 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 Section 482 of 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 Section 482 of Cr.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 CRL.M.C.No.4346/05 -3- the same is overruled. The legal position has been summarised in clauses (v) (vii), (viii) and (ix) of paragraph 53, which 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 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 CRL.M.C.No.4346/05 -4- 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 of Criminal Procedure. 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 Cr.P.C. and there is no merit in this petition. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn