IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.MC.No. 42 of 2005() ----------------------- SC.362/2003 of ADDL.SESSIONS COURT, (ADHOC-i), ERNAKULAM .................... PETITIONER: ------------ SAJU, AGED 25 YEARS, S/O.DEVASSY, AVUPPADAN HOUSE, VADAKKUMBHAGAM KARA, MANJAPRA VILLAGE, ALWAYE TALUK. BY ADV. SRI.S.RAJEEV RESPONDENT: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.135/05 IN CRL.M.C.NO.42/05 DISMISSED 31.7.08 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.42 OF 2005 ----------------------------------------------------- DATED THIS THE 31st DAY OF JULY, 2008 O R D E R Petitioner is the 3rd accused in Crime No.151/99 of Perumbavoor Police Station registered against him and three other accused for the offence punishable under sections 58 of the Abkari Act. The case against accused 1, 2 and 4 was committed by the learned Magistrate. The learned Additional Sessions Judge (Adhoc-I), Ernakulam has proceeded the case against them and acquitted them under Section 235 of Cr.P.C. as revealed from the judgment dated 24.3.2004 in S.C.No.362/03, a copy of which is produced as Annexure I. This petition is filed by the 3rd accused in that crime with a prayer to quash Annexure II charge sheet against the petitioner in C.P.No.94/03 pending on the file of the Court of J.F.C.M., Perumbavoor. 2. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioner that accused Nos.1, 2 and 4 in the same crime CRL.M.C.No.42/05 -2- have faced the trial and were acquitted by the learned Additional Sessions Judge (Adhoc-I), Ernakulam as per judgment dated 24.3.2004 in S.C.No.362/03, a copy of which is produced as Annexure I. According to the learned counsel appearing for the petitioner, the petitioner is the sole bread winner of the family and he could not appear before the learned Magistrate for the reason that he got an employment in gulf and that the prosecution could not adduce any evidence to prove the case and the proceedings to continue the trial as against the petitioner will be an abuse of process of the court. 4. The prayer in this petition is opposed by the learned Public Prosecutor. It is submitted by the learned Public Prosecutor that the point is decided by the Full Bench of this Court in Moosa V. Sub Inspector of Police (2006 (1) KLT 552(FB)) wherein it is held that acquittal of some of the accused after trial will not entitle co-accused for an acquittal invoking the inherent power under Section 482 of Cr.P.C. It is held in that decision that the power under Section 482 of Cr.P.C. cannot be invoked to prevent the trial of the accused. So, only by referring to the overt act played by the accused as spoken to by the witnesses in the case of the co-accused, this Court cannot in exercise of its jurisdiction under Section 482 of Cr.P.c. quash the proceedings CRL.M.C.No.42/05 -3- and prevent the trial. The legal position has been summarised in clauses (v), (vii), (viii) and (ix) which reads 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 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 CRL.M.C.No.42/05 -4- 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.” 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 that this Court cannot exercise the inherent jurisdiction under Section 482 of Cr.P.C. and there is no merit in this petition. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn