IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Crl.MC.No. 3338 of 2008() ------------------------------------ (S.C.889/05 OF SESSIONS COURT, TELLICHERRY – C.P.NO.7/05 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR) (CRIME NO.74/2004 OF MATTANNUR POLICE STATION) PETITIONER: 2ND ACCUSED: -------------------------------------------- FAISAL, S/O.MAMMU, AGED 26 YEARS, RESIDING AT RAHMATH MANZIL, 19TH MILE (P.O.) CHAVASSERY, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.T.P.SAJID RESPONDENTS: ------------------------ 1. THE CIRCLE INSPECTOR OF POLICE, MATTANNUR POLICE STATION, MATTANNUR. 2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3338 of 2008 ------------------------------------------------- Dated this the 3rd day of September, 2008 ORDER The petitioner, along with the co-accused, faced indictment in a prosecution for offences punishable, inter alia, under Sec.308 read with Sec.149 IPC. The co-accused, who faced trial, have been found not guilty and acquitted by the learned Sessions Judge. The petitioner was not available for committal. The case against him has been split up and is pending before the learned Magistrate as C.P.No.7/05. He has not entered appearance so far. He was not arrested and released on bail at the crime stage or thereafter, it is submitted. 2. The petitioner has come to this Court with a prayer that the proceedings against him may be quashed. A Full Bench decision of this Court in Moosa v. Sub Inspector of Crl.M.C. No. 3338 of 2008 -: 2 :- Police (2006 (1) KLT 552) is authority for the proposition that an absconding accused cannot claim any benefit or advantage on account of the acquittal of the co-accused who faced trial. In such trial, the prosecution was not obliged to adduce evidence against the absconding accused and the acquittal of the co- accused due to paucity of evidence such trial cannot entitle the petitioner any benefit or advantage. 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His earlier absence was not wilful or deliberate. Coercive processes issued by the learned Magistrate are chasing the petitioner now. The petitioner, in these circumstances, wants to surrender before the learned Magistrate and seek regular bail. The petitioner apprehends that his application for regular bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. It is, in these circumstances, that the petitioner has come to this Court for a direction to the learned Magistrate to release him on bail when he appears before the learned Magistrate. 4. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before Crl.M.C. No. 3338 of 2008 -: 3 :- the learned Magistrate. I have no reason to assume that the learned Magistrate would not consider the petitioner's application for regular bail on merits, in accordance with law and expeditiously. No special or specific directions appear to be necessary. Every court must do the same. 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). 5. In the result, this Crl.M.C. is dismissed; but with the observation 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, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously – on the date of surrender itself. Needless to say, the application for bail will have to be considered in the light of the decision in Sukumari v. State of Kerala (2001 (1) KLT 22). (R. BASANT, JUDGE) Nan/ Crl.M.C. No. 3338 of 2008 -: 4 :-