IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.MC.No. 3232 of 2008() ------------------------- CC.1085/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... PETITIONER/A11: ------------ DINES, S/O. KUMARAN, KUMBIL HOUSE, PERAKAM DESOM, VAZHAPPILLY VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3232 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2008 O R D E R The petitioner is the 11th accused and he faced indictment along with the co-accused in a prosecution for offences punishable, inter alia, under Section 427 r/w. 149 I.P.C. The co- accused, who were available for trial were tried in two instalments in C.C. 1058 of 2005 and C.C.211 of 2001. They have been found not guilty and acquitted on merits on the basis of the evidence that was adduced in those two cases. The petitioner was not available for trial along with the co-accused. The case against him has hence been split up and transferred to the list of long pending cases. Coercive processes have been issued against him. Such processes are chasing the petitioner. He apprehends imminent arrest. 2. According to the petitioner continuance of the prosecution against him would be an irrelevant exercise in futility as the co-accused have already been found not guilty and Crl.M.C.No. 3232 of 2008 2 acquitted. In view of the acquittal of the co-accused there can be no worthwhile allegation of an unlawful assembly against the petitioner. As against the petitioner, it is submitted at the Bar, that without the aid of Section 149 I.P.C. the charge cannot lie at all. The co-accused having already been acquitted and the prosecution having no case that there was any other unlawful assembly other than the one constituted by the acquitted co-accused and the petitioner herein the allegation of unlawful assembly and vicarious liability with the aid of section 149 I.P.C. would not lie at all. In these circumstances it is contended that the continuance of the prosecution against the petitioner deserves to be interdicted by invoking the jurisdiction under Section 482 Cr.P.C. 3. The Full Bench decision in Moosa v. S.I. of Police (2006 (1) KLT 552) is authority for the proposition that the absconding accused cannot claim any benefit/advantage on the ground that as against the accused, who faced trial there was no worthwhile evidence of culpability. The learned counsel for the petitioner submits that the petitioner is not seeking any relief on the strength of the acquittal of the co-accused, but he is relying on the fact that the co-accused having already been found not guilty, there is no plank on which the Crl.M.C.No. 3232 of 2008 3 allegation under Section 143 and culpable liability under Section 149 I.P.C. can stand at all. I am of the opinion that the petitioner must raise these contentions before the learned Magistrate at the stage of Section 239/258 Cr.P.C. as the case may be. Only if such plea does not succeed and the plea of the accused is recorded, can the petitioner be said to have any valid contention to be urged before superior courts. The petitioner must appear before the learned Magistrate and seek premature termination of proceedings on the basis of the circumstances which the counsel wants to urge before me. 4. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears 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 orders on merits, in accordance with law and expeditiously - on the date of surrender itself. (R. BASANT) Judge tm