IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 Crl.MC.No. 3985 of 2008() ------------------------- CP.19/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER(S): 9TH ACCUSED: ------------------------------------------------ PONNICHI SUBAIR, S/O.IBRAHIM, RAMANTHALI AMSOM, VADAKKUMBAD, P.O.VADAKKUMBAD. BY ADV. SRI.P.M.HABEEB RESPONDENT(S): --------------------------- STATE OF KERALA, REP. BY STATION HOUSE OFFICER, PAYYANNUR POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 3985 OF 2008 ----------------------------------------------- Dated this the 23rd day of October, 2008 O R D E R Petitioner faces indictment as the 9th accused in a prosecution for offences punishable, inter alia, under Section 436 read with Section 149 IPC. Final report has already been filed. Cognizance has been taken. Committal proceedings have been registered. But the petitioner was not available to be proceeded with. The case against him is hence pending before the learned Magistrate as a committal proceeding in the long pending list. Some of the co-accused who also faced indictment have now been found not guilty and acquitted. Some other co-accused had come to this Court prior to the directions in Moosa v. Sub Inspector of Police [2006(1) KLT 552] and prosecution against them was quashed also. The petitioner is employed abroad. He has now come to this Court with the prayer that powers under Section 482 Cr.P.C may be invoked to quash the proceedings against him. 2. It is by now trite after the decision of the Full Bench in Moosa(supra) that an absconding co-accused cannot claim any Crl.M.C. No. 3985 OF 2008 -:2:- benefit or advantage on the basis of a judgment of acquittal in the trial against the co-accused. Want of evidence in such trial against the co-accused which entitled them to an acquittal is no a reason for an absconding accused to claim quashing of proceedings by invoking the jurisdiction under Section 482 Cr.P.C, it is now well settled. In these circumstances it is certainly for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances in which he could not earlier appear and seek regular bail. If such an application is filed, needless to say that, the learned Magistrate must proceed to consider such application for bail on merits, in accordance with law and expeditiously on the date of surrender itself, provided sufficient prior notice of the bail application is given to the Prosecutor in charge of the case. 3. I find no reason to interfere with the prosecution pending against the petitioner. This petition, in these circumstances, is dismissed but subject to the above directions regarding the disposal of the bail application. 4. Needless to say, the petitioner’s option to claim discharge Crl.M.C. No. 3985 OF 2008 -:3:- under Section 227 Cr.P.C before the Sessions Court shall remain unfettered by the dismissal of this Crl.MC. 5. Hand over copy of this order to the learned counsel for the petitioner. R. BASANT, JUDGE ttb Crl.M.C. No. 3985 OF 2008 -:4:- Crl.M.C. No. 3985 OF 2008 -:5:-