IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 Crl.MC.No. 1736 of 2008(F) ------------------------------------- (S.T.NO.1543/2001 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, PARAVUR) .................... PETITIONER/ 1ST ACCUSED: ----------------------------------------- BHADRAKUMAR, S/O.BHARGAVAN, PARANKIMAMVILA VEEDU, EZHUKONE CHERRI, EZHUKONE VILLAGE. BY ADV. SRI.B.KRISHNA MANI. RESPONDENTS/ COMPLAINANT: ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE S.I. OF PARAVOOR POLICE STATION, KOLLAM DISTRICT. 2. THE 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 18/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 1736 of 2008 ------------------------------------------------- Dated this the 18th day of June, 2008 ORDER The petitioner, along with two co-accused, faced a prosecution under Sec.55(a) and (h) of the Kerala Abkari Act. The crux of the allegations is that accused 2 and 3 had sold illicit liquor in a toddy shop of which the petitioner is the owner/licensee. The petitioner was not available for trial. The case against him was split up. The co-accused stood trial. In the course of the trial, it was found that the 2nd accused who faced trial is not guilty of the offence alleged against him. Accordingly, he was found not guilty and acquitted. 2. According to the petitioner's counsel, the petitioner is now entitled to the invocation of the extraordinary inherent jurisdiction under Sec.482 of the Cr.P.C. The co-accused having been acquitted, the prosecution against the petitioner Crl.M.C. No. 1736 of 2008 -: 2 :- cannot produce any tangible or positive result. It is hence prayed that proceedings against the petitioner may be quashed. 3. I have been taken through the judgment of acquittal rendered in favour of one of the two accused who were allegedly selling illicit liquor in the shop allegedly belonging to the petitioner. It is seen that the judgment was rendered not on merits completely; but on the principal ground that the crucial witness who detected the offence was not examined by the prosecution. The field is occupied by a Full Bench dictum in Moosa v. Sub Inspector of Police (2006 (1) KLT 552) and the said decision is authority for the proposition that an absconding co-accused cannot obviously rely on the inability or failure on the part of the prosecution to make all evidence available before court in such trial. The option of the prosecution to produce the principal witness/detecting officer in the trial against the petitioner remains. What view the court will take if it is satisfied of the vital facts on examination of the detecting officer, cannot be speculated now. I am, in these circumstances, satisfied that the contention of the learned counsel for the petitioner that the facts of instant case must take the petitioner out of the sweep of the dictum in Moosa v. Sub Inspector of Police (cited supra) cannot be accepted. 4. In the result, this Crl.M.C. is dismissed. I may hasten to Crl.M.C. No. 1736 of 2008 -: 3 :- observe that the dismissal of this Crl.M.C. will not in any way fetter the rights of the petitioner to raise all his contentions before the learned Magistrate to claim discharge/acquittal at the appropriate stage. Such contentions will have to be considered on merits and appropriate decision taken. 5. A warrant of arrest is pending against the petitioner, it is further lamented. The petitioner can appear before the learned Magistrate and seek regular bail. Sufficient general directions have already been issued in the decision in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). No special or specific directions appear to be necessary. Every court must do the same. If the petitioner surrenders before the learned Magistrate and seeks 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 and expeditiously – on the date of surrender itself. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge