IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 Crl.MC.No. 1623 of 2008() ------------------------- CC.959/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER: ACCUSED(A1 &A2) ------------------- 1. JOHNSON, S/O.XAVIER, THEKKEKKUNNEL VEEDU, PONMUDI KARA, KONNATHADI VILLAGE, IDUKKI DIST. 2. SREEKUMAR, S/O.VASUDEVAN PILLAI, VIZHIN VILASAM VEEDU, KALAIR KARA, PAMPADAM VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DIST. BY ADV. SRI.C.D.JOHNY SMT.MEREENA JOSEPH RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1623 of 2008 ---------------------------------------- Dated this the 23rd day of May 2008 O R D E R The petitioners along with a co-accused faced indictment in a prosecution for offences punishable inter alia under Sections 323 and 341 I.P.C. Petitioners are accused 1 and 2. They were not available for trial. Third accused alone was available for trial. In the trial against the third accused, the injured victim/CW1 did not appear. His presence was not procured. Only one witness was examined in that case. That witness - PW1, allegedly an eye witness, did not support the prosecution case. Strangely the learned Magistrate said that “all remaining witnesses are from outside the district. So their presence could not be procured”. Therefore after examining the hostile witness PW1, the proceedings were closed and the third accused was found not guilty and acquitted. The case against the petitioners was directed to be split up and re-numbered. The petitioners claimed to be aggrieved by the impugned order. 2. What is their grievance? The learned counsel for the petitioners submits that the case against the third accused having ended in acquittal, the advantage of that must have been given to the petitioners also and the proceedings against them must have Crl.M.C.No.1623/08 2 been discontinued. It is prayed that invoking the powers under Section 482 Cr.P.C, the proceedings against accused 1 and 2 may also be quashed. I am afraid the request cannot be accepted. It is not a case where the learned Magistrate has found that the case against all the accused persons including the accused who have not available for trial is “only untrue”. Rule ........... of the Kerala Criminal Rules and Practices hence have no application whatsoever. The decision in Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)] is authority for the proposition that an absconding co-accused cannot claim any benefit or advantage on the basis of the acquittal of the co-accused. More so in a case like the instant one where even the injured witness has not been examined in the trial against the acquitted co-accused. In these circumstances, I am satisfied that the prayer of the petitioners is without any merit. 3. This Criminal Miscellaneous Case is in these circumstances dismissed. Needless to say, if the petitioners surrender before the learned Magistrate and apply 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. (R.BASANT, JUDGE) jsr Crl.M.C.No.1623/08 3 Crl.M.C.No.1623/08 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007