IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 Crl.MC.No. 212 of 2009() ------------------------------------- (CRIME NO.177/88 OF KODUVALLY POLICE STATION) PETITIONER(S): ACCUSED: ------------------------------------------ UMMER , S/O. ABOOBACKER HAJI, KOROTH KANDIYIL, NEDIYANADE AMSOM DESOM. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J ------------------------------------ Crl.M.C. No.212 of 2009 ------------------------------------- Dated this the 15th day of January, 2009 ORDER Petitioner along with a co-accused faced indictment in a prosecution under Section 3 r/w 25 of the Indian Arms Act. Both of them stood trial. At the stage of 313 examination, the petitioner started not appearing before the court. He was hence not examined under Section 313 Cr.P.C. As against the co- accused, trial was completed. He was found not guilty and acquitted. The case against the petitioner was split up and re- filed. The order of acquittal was recorded as per Annexure-1 judgment dated 20.01.1993. 2. For the last 15 years, the petitioner has not appeared before court nor was the police able to apprehend the petitioner. At this juncture, the petitioner has surfaced and has come to this Court with this petition under Section 482 Cr.P.C to quash the prosecution against him. The learned counsel for the petitioner submits that this is not a fit case where the dictum in [Moosa v. Sub Inspector of Police [2006(1) KLT 552] would apply as the trial against the petitioner was almost complete and it is on the very same evidence that the petitioner has to stand indictment. In these circumstances, it is prayed that the extraordinary Crl.M.C. No.212 of 2009 2 inherent jurisdiction may be invoked to quash the surviving prosecution against the petitioner which is really irrelevant. 3. The learned Public Prosecutor only submits that this is not a case where the extraordinary inherent jurisdiction under Section 482 Cr.P.C can or ought to be invoked in favour of the petitioner who has been absconding and with impunity indulging in the act of abscondance for the past about 1 ½ decades. The petitioner may be directed to surrender before the learned Magistrate, seek bail and claim acquittal. There is absolutely no justification to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C in favour of such a petitioner, submits the learned Public Prosecutor. 4. I find merit in the submission of the learned Public Prosecutor. I am not, in these circumstances, proceeding to consider the complicity of the petitioner. Suffice it to say that the admitted past conduct of the petitioner, who has been absconding from the stage of 313 examination, dis entitles him to the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. But that cannot of course persuade me not to accept the request of the learned counsel for the petitioner for a direction to expeditiously complete the proceedings against him. That does not also persuade me not to grant the limited Crl.M.C. No.212 of 2009 3 relief claimed by his counsel in the course of the arguments that the petitioner's application for regular bail may be directed to be considered on merits, in accordance with law and expeditiously. 5. In the result: a) This Crl.M.C is dismissed; b) But the dismissal is subject to the specific observation that if the petitioner surrenders before the learned Magistrate and seek regular bail after giving sufficient 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; c) It is further observed that if the petitioner surrenders before the learned Magistrate, every attempt shall be made by the learned Magistrate to expeditiously complete the proceedings against him and the proceedings against the petitioner can now continue from the stage where it was discontinued, ie. the stage of 313 Cr.P.C as per Annexure-1 judgment. 6. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/- Crl.M.C. No.212 of 2009 4