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. 1857 of 2008() ------------------------- ST.1088/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... PETITIONER: ------------- BHADRAKUMAR, S/O.BHARGAVAN, PARANKIMAMVILA VEEDU, EZHUKONE CHERRI, EZHUKONE VILLAE. BY ADV. SRI.B.KRISHNA MANI SRI.SIJU RAJAN SMT.M.R.ANUPAMA RESPONDENTS: ---------------- 1. STATE OF KERALA , REP. BY THE SUB INSPECTOR OF POLICE, PARAVOOR. 2. STATE OF KERALA REP. 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. 1857 OF 2008 ----------------------------------------------- Dated this the 18th day of June, 2008 O R D E R The petitioner faced indictment along with another accused for offences punishable under the Kerala Abkari Act. The crux of the allegations is that in a toddy shop of which the petitioner is the licensee, second accused was selling illicit liquor. The petitioner was not available for trial and the case against him was split up. The accused who took trial was found not guilty and acquitted. Annexure A3 is the judgment under which the co-accused was found not guilty and acquitted. 2. The learned counsel for the petitioner contends that in as much as the co-accused has already been acquitted and culpability of the petitioner would dependent on the culpability of the acquitted co-accused, the prosecution against the petitioner may be quashed invoking the powers under Section 482 Cr.P.C. Counsel contends that the petitioner's case does not fall within the sweep of dictum in Moosa V. Sub Inspector of Police [2006(1) KLT 552]. Crl.M.C. No. 1857 OF 2008 2 3. I have been taken through Annexure 3 judgment of acquittal. I am unable to agree with the learned counsel for the petitioner. A careful reading of Annexure A3 shows that the plank on which the co-accused secured acquittal is that the detecting officer could not be examined by the prosecution. Mere inability of the prosecution to examine a witness in the trial against co- accused cannot certainly confer on the absconding co-accused any undeserved advantage or benefit. 4. I must hasten to observe that this order 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 appropriate decision rendered by the trial court. 5. 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]. 6. In the result, this petition is dismissed but with the specific Crl.M.C. No. 1857 OF 2008 3 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 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. 1857 OF 2008 4 Crl.M.C. No. 1857 OF 2008 5