IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 Crl.MC.No. 2685 of 2008() ------------------------- CC.491/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER: ------------ FAISAL, S/O. ELLUPAT MUHAMMED, PUNNAYOOR VILLAGE, AKALAD DESOM. BY ADV. SRI.K.V.RAMABHADRAN RESPONDENTS: ------------- STATE OF KERALA, BY SUB INSPECTOR OF POLICE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2685 of 2008 ------------------------------------------------- Dated this the 17th day of July, 2008 ORDER The petitioner faced indictment, along with the co- accused, in a prosecution for the offences punishable under Secs.457 and 380 read with Sec.34 IPC. The crime was registered as early as in 1996. Investigation was completed. Final report was filed and cognizance was taken by the learned Magistrate. Altogether, there were 8 accused persons. Cognizance was taken in 1998. The petitioner, it is submitted, was not arrested at the crime stage. Thereafter, he had allegedly not received any notice, summons or memo from the court to appear. He was employed abroad all along. He has now come to know that the case against him is registered on the basis of a final report in Crime No.112/96. Out of the 8 co- accused, 6 stood trial. All of them were found not guilty and Crl.M.C. No. 2685 of 2008 -: 2 :- acquitted by the learned Magistrate as per Annexure-D judgment. The case against the petitioner is split up and is now pending as C.C.No.491/01. As the petitioner had not entered appearance at any stage, the case has been transferred to the list of Long Pending Cases and coercive processes issued by the learned Magistrate are chasing the petitioner now. The petitioner apprehends imminent arrest. 2. According to the petitioner, the allegations against him are totally unjustified. The co-accused have already been tried, found not guilty and acquitted. The learned counsel for the petitioner submits that even ignoring the judgment in the trial against the co-accused, the petitioner is entitled rendered to have the proceedings against him quashed as no worthwhile allegations have been raised against him to attract culpability under Secs.457 and 380 IPC. It is prayed that powers under Sec.482 Cr.P.C. may be invoked to quash the proceedings against the petitioner. 3. The crime was registered in 1996. Cognizance was taken in 1998. For the last one decade the petitioner obviously has been avoiding the long arms of law. I am not persuaded to agree that there are any compelling reasons in this case that can justify or persuade me to invoke the extraordinary inherent Crl.M.C. No. 2685 of 2008 -: 3 :- jurisdiction under Sec.482 Cr.P.C. It is for the petitioner to appear before the learned Magistrate and seek regular bail. When the petitioner so appears and files such application, the learned Magistrate must certainly proceed to consider the application on merits, in accordance with law and expeditiously. Sufficient general directions on this aspect have already been issued in the decision reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). I have no reason to assume that the learned Magistrate would not consider such application in accordance with law as stipulated in Alice George. 4. Coming specifically to the prayer for quashing of the proceedings, the decision of a Full Bench in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) is authority for the proposition that the absconding accused cannot claim or derive any advantage out of the judgment of acquittal rendered in favour of the co-accused who had appeared before court and had stood trial. 5. The contention of the learned counsel for the petitioner that the materials collected do not justify the indictment against him must certainly be raised by him at the stage of framing of charges under Sec.239/240 Cr.P.C. The Code of Criminal Crl.M.C. No. 2685 of 2008 -: 4 :- Procedure affords opportunities to an indictee who faces an unjust and undeserved indictment to claim premature termination of the proceedings. Such an indictee facing indictment in a warrant case on the basis of a police report can claim such premature termination of the proceedings at the stage of Serc.239/240 Cr.P.C. Ordinarily and normally a party must be relegated to claim discharge at that stage if he wants premature termination of the proceedings. 6. It is not as though this Court does not have jurisdictional competence to invoke Sec.482 Cr.P.C. to quash the proceedings at any earlier or later stage of the proceedings; but exceptional reasons must be shown to exist. The court must be satisfied that the interests of justice demand resort to such a course. I am unable to entertain that crucial satisfaction in the facts and circumstances of this case. 7. In the result: (a) This Crl.M.C. is dismissed. (b) But I may hasten to observe that if the petitioner surrenders before the learned Magistrate and seeks bail after giving sufficient prior notice to the Prosecutor in charge of the case within a period of 15 days from this date, the learned Magistrate must proceed to consider such application for bail on Crl.M.C. No. 2685 of 2008 -: 5 :- merits, in accordance with law and expeditiously – on the date of surrender itself. 8. I further make it clear that I have not intended to express any opinion on the question whether the petitioner is entitled for discharge at the stage of Sec.239 Cr.P.C. If the petitioner raises such contention, it shall be incumbent on the Magistrate to consider such plea for discharge and take appropriate decision. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge