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. 1737 of 2008() ------------------------- ST.1328/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... PETITIONER: IST ACCUSED ------------------------------ BHADRAKUMAR, S/O.BHARGAVAN, PARANKIMAMVILA VEEDU, EZHUKONE CHERRI, EZHUKONE VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PARAVOOR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. AMJAD ALI. 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. 1737 OF 2008 ----------------------------------------------- Dated this the 19th day of June, 2008 O R D E R Petitioner faced indictment as first accused in a prosecution under Section 55 (a) and (h) of the Kerala Abkari Act. Petitioner, the 1st accused was not available for trial. Accused 2 and 3 stood for trial and they have found not guilty as per Annexure A3 judgment. 2. Petitioner has now come to this Court with a prayer that the co-accused having been found not guilty and acquitted, powers under Section 482 Cr.P.C may be invoked to quash the split up proceedings against the petitioner. The counsel conscious of the dictum of the Full Bench in Moosa V. Sub Inspector of Police [2006(1) KLT 552 ] contends that the facts of this case must help to take his case out of the sweep of the dictum in Moosa(supra). 3. I have been taken through Annexure A3 judgment. The judgment of acquittal of accused 2 and 3 is on the plank that the prosecution has not been able to examine one crucial witness in that trial. Consequently, there is no specific finding on merits on Crl.M.C. No. 1737 OF 2008 2 any crucial aspect in favour of the petitioner. In as much as the prosecution could not secure presence of the crucial witness in the trial against the co-accused, the co-accused who faced trial got the benefit of it and were acquitted. Certainly, the petitioner cannot take advantage of the inability/failure of the prosecution to produce the witness in the trial against co-accused. Petitioner certainly falls within the sweep of the dictum of Moosa(supra) and the prayer for quashing all the proceedings cannot be accepted. This Crl.M.C is, in these circumstances, dismissed. 4. I must hasten to observe that this judgment will not in any way fetter the right of the petitioner to take up all defences and claim discharge/acquittal from the trial court at the appropriate stage. The said prayer must be considered on merits and an appropriate decision rendered by the trial court. 5. A warrant of arrest is pending against the petitioner, it is submitted. It is for the petitioner to surrender before the learned Magistrate and seek regular bail. Sufficient general directions have been issued in Alice George Vs. Deputy Superintendent of Police [2003 (1) KLT 339]. Crl.M.C. No. 1737 OF 2008 3 6. In the result, this petition is dismissed but with the specific observation that if the petitioner surrenders 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 appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. No further and specific directions appear to be necessary. R. BASANT, JUDGE ttb Crl.M.C. No. 1737 OF 2008 4 Crl.M.C. No. 1737 OF 2008 5