IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 Crl.MC.No. 283 of 2005 ------------------------ LPC.3/2005 of THE ADDITIONAL SESSIONS COURT(FAST TRACK COURT NO.1) MANJERI .................... PETITIONER: PETITIONER/ACCUSED: ------------------------------- VELLARAMPARA SAIDALAVI @ SAIDALI, S/O.ABDURAHIMANKUTTY MOLLA, CHELARI, THENHIPPALAM MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE; ------------------- THE STATE OF KERALA, REP. BY THE CIRCLE INSPECTOR OF POLICE NILAMBUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. BY PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO. 778/2005 IN CRL.M.C.NO. 283 OF 2005 DISMISSED. 7-8-2008 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S.TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 283 OF 2005 ======================== Dated this the 7TH DAY OF AUGUST 2008 ORDER The petitioner is the sole accused in L.P.No.3/2005 on the file of the Additional Sessions Court(Adhoc No.1), Manjeri. The case against him was split up as revealed from Annexure-A, the judgment dated 28-7-2004 in S.C.No.442/2001. Altogether 11 accused are there in Crime No.95/97 of Vazhikakdavu police station registered for the offence under Sections 395 and 120B of the Indian Penal Code. Accused Nos.3,4,5 and 7 to 11 faced the trial and were acquitted by the learned Additional Sessions Judge as per the above mentioned judgment, Annexure-A. This petition is filed by the first accused in the same crime to quash the entire proceedings against the first accused, the petitioner, in L.P.No.3/2005 on the file of the Additional Sessions Court(Adhoc-I)Manjeri. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. CRL.M.C.NO. 283/2005 -2- 3. It is submitted by the learned counsel appearing for the petitioner that all the material witnesses examined in S.C.No.442/2001 turned hostile and did not support the prosecution case. Therefore, the learned Sessions Judge acquitted some of the co-accused in the same crime. Therefore, no useful purpose will be served by directing the petitioner to face the trial and the continuance of the proceedings against the petitioner will be an abuse of process of the court and the same is liable to be quashed. 4. It is submitted by the learned counsel appearing for the petitioners that even if the charge against the petitioners are tried, there is no likelihood of proving the same as the independent prosecution witnesses already examined before the trial court turned hostile and some of the accused persons in the same crime were acquitted as revealed from the judgment of the trial court produced as Annexure-A. It is also submitted by the learned counsel for the petitioner that the finding of the court below in the above mentioned judgment is that the prosecution failed to prove the allegations and so the continuance of prosecution against the petitioner will be a sheer waste of judicial time and in the interest of justice, the continuance of the proceedings against him will be an abuse of process of law and is CRL.M.C.NO. 283/2005 -3- liable to be quashed. 5. It is submitted by the learned Public Prosecutor that the point to be decided in this petition is covered by the decision in Moosa v. Sub Inspector of Police, 2006(1)K.L.T.552 wherein it is held by the Full Bench of this Court that acquittal of some of the accused after trial will not entitle co-accused for an acquittal invoking the inherent powers under Section 482 of the Code of Criminal procedure. 6. It is held in the aforementioned decision that “the power under S.482 Cr.P.C.cannot be invoked to prevent the trial of the petitioners/accused solely by referring to the overt act played by the accused as spoken to by the witnesses in the case of the co-accused and this court cannot in exercise of its jurisdiction under S.482Cr.P.C.quash the proceedings and prevent the trial. Hence the dictum laid down in Arun Kumar's case to the extent it has taken a contrary view of what is stated above, is not a correct law and the same is overruled. The legal position has been summarised also wherein clauses (v),(vii)(viii), (ix) read as follows: (v)In a trial against the co-accused the prosecution is not called upon, nor is it expected to adduce evidence against the absconding co-accused. In such trial the prosecution cannot be held to have the opportunity or obligation to adduce all evidence against the absconding co-accused. The fact that the testimony of a witness was not accepted or acted upon in CRL.M.C.NO. 283/2005 -4- the trial against the co-accused is no reason to assume that he shall not tender incriminating evidence or that his evidence will not be accepted in such later trial. (vii) The judgment of acquittal of a co-accused in a criminal trial is not admissible under Ss.40 to 43 of the Evidence Act to bar the subsequent trial of the absconding co-accused and cannot hence be reckoned as a relevant document while considering the prayer to quash the proceedings under S.482 Cr.P.C. Such judgments will be admissible only to show as to who were the parties in the earlier proceedings or the factum of acquittal. (viii) While considering the prayer for invocation of the extraordinary inherent jurisdiction to serve the ends of justice, it is perfectly permissible for the court to consider the bona fides – the cleanliness of the hands of the seeker. If he is a fugitive from justice having absconded or jumped bail without sufficient reason or having waited for manipulation of hostility of witnesses, such improper conduct would certainly be a justifiable reason for the court to refuse to invoke its powers under S.482 of the Code of Criminal Procedure. (ix) The fact that the co-accused have secured acquittal in the trial against them in the absence of absconding co-accused cannot by itself be reckoned as a relevant circumstance while considering invocation of the powers under S.482 of the Code of Criminal Procedure.” 7. In the light of the dictum laid down in the above said decision which is squarely applicable to the facts of this case, I find CRL.M.C.NO. 283/2005 -5- that this Court cannot exercise the inherent jurisdiction under Section 482 of the Code of Criminal Procedure and there is no merit in this petition. In the result, the Crl.M.C.is dismissed. M.C. HARI RANI JUDGE ks.