IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 26245 of 2009(Q) --------------------------------------------- SC.463/2008 of SESSIONS COURT, KOLLAM .................... PETITIONER: NISAM @ SHAYAM, S/O.VAHAB, RESIDING AT SNEHA NAGAR-4, NEAR KOCHU NADA, KUREEPUZHA CHERY, SAKTHIKULANGARA VILLAGE. BY ADV. SRI.C.RAJENDRAN RESPONDENT: STATE OF KERALA, REP.BY THE C.I.OF POLICE, KOLLAM WEST POLICE STATION THROUGH THE PUBLIC PROSECTOR, HIGH COURT OF KERALA, ERNAKULAM. BY GOVT. PLEADER SRI.S.U.NAZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- W.P.(C)No.26245 of 2009 Q -------------------------- JUDGMENT Petitioner is the second accused in S.C.No. 463/2008 on the file of Sessions Court-II, Kollam. This petition is filed under Article 227 of Constitution of India to direct the Sessions Judge to split up the case as against the fourth accused as he did not appear so far. It is contended that unless a direction is issued, trial of the case cannot be proceeded. 2. A report was called for from the learned Additional Sessions Judge on the feasibility of splitting up the case as against the fourth accused. Learned Additional Sessions Judge reported that on 5.9.2009 the case was posted for appearance of the fourth accused. But an application was filed stating that he is laid up at a distant place. Hence, it was adjourned and even if the case is split up, it would be become ripe for trial only WPC 26245/09 2 in 2010 and altogether sixty one sessions cases are pending before that court and many of them are much older than the present case and in such circumstances, it is not in the interest of justice to split up the case as against the fourth accused. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner submitted that petitioner is working in Gulf and because of the case, he cannot return and unless the case as against the fourth accused is split up, the case as against others cannot be tried and if the trial is not over within a reasonable period, petitioner would suffer irreparable loss. 5. Offences alleged against the petitioner includes the offence under Section 302 of Indian Penal Code. Report of the Additional Sessions Judge shows that fourth accused is not absconding so as to invoke the power under Rule 16(1) of Criminal Rules of Practice. So long as the fourth accused is WPC 26245/09 3 not absconding, there cannot be a direction to split up the case as against him. 6. Learned counsel appearing for the petitioner then submitted that fourth accused will not appear within a reasonable period. It is for the learned Sessions Judge to decide whether fourth accused is absconding or purposely evading from appearing before the court and if he finds that fourth accused is purposely evading from appearing before the court, learned Sessions Judge is competent to split up the case as against the fourth accused and proceed with the case as against others. Considering the fact that petitioner may not be in a position to leave India before disposing the case, learned Sessions Judge may expedite the trial of the case. Petition is disposed. 20th October, 2009 (M.Sasidharan Nambiar, Judge) tkv