IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 4796 of 2008() ------------------------- CC.1351/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD CRIME NO.154/97 OF VATANAPPILLY POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- SANTHOSH, S/O.KUNHUNNI, KUTTAMPARAMBATH VEEDU, THAMBANKADAVU, THALIKULAM VILLAGE. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY SUB' INSPECTOR OF POLICE, VATANAPPILLY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4796 of 2008 ---------------------------------------- Dated this the 11th day of December 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable inter alia under Section 353 read with 149 I.P.C. Altogether there were 13 accused persons. All other accused persons except three have already been tried, found not guilty and acquitted. The case against the remaining three including the petitioner herein has been split up and refiled. The co-accused have been acquitted as per two separate judgments Annexures B and C. The petitioner faces indictment in the surviving prosecution. The petitioner has now come to this court with the prayer that the prosecution against him may be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 2. What is the reason? The learned counsel for the petitioner submits that inasmuch as the co-accused have already been tried, found not guilty and acquitted, there is no semblance of a possibility that the petitioner would be found guilty, convicted and sentenced. In these circumstances, the unnecessary continuance of the prosecution works out great prejudice, hardship and endless harassment against the Crl.M.C.No.4796/08 2 petitioner. Extraordinary inherent jurisdiction may be invoked to bring to premature termination such unnecessary and irrelevant prosecution, submits the learned counsel for the petitioner. 3. The application is opposed. After the decision of the Full Bench in Moosa vs. Sub Inspector of Police [2006(1) KLT 552] it is trite that an absconding accused cannot take advantage of the judgment of acquittal in favour of a co-accused who faced trial. Such co-accused were acquitted on the basis of the materials placed before the court in such cases. In such prosecution, the State has no obligation to specifically place the incriminating materials against the absconding accused before the court. In these circumstances, the petitioner's claim for any benefit or advantage on the basis of the acquittal of the co- accused in such prosecution against the co-accused cannot obviously succeed. The petitioner cannot succeed in this Crl.M.C. 4. In the result, this Crl.M.C is dismissed but I may hasten to observe that the the dismissal of this Crl.M.C will not fetter the rights of the petitioner to stake his claim for discharge Crl.M.C.No.4796/08 3 before the learned Magistrate or if he is not successful, to claim acquittal at later stages. 5. The learned counsel for the petitioner submits that coercive processes issued by the learned Magistrate are chasing the petitioner. The petitioner apprehends imminent arrest in execution of such processes. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 6. 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 the learned Magistrate. I find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with law and expeditiously. Every court must do the same. No Crl.M.C.No.4796/08 4 special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339]. 7. 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 proceed to pass appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.4796/08 5 Crl.M.C.No.4796/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008