IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3544 of 2007()
1. BIJU M.ELIAS, S/O.ELIAS YOHANNAN,
... Petitioner
2. JOHNSON.A., S/O.ELIAS YOHANNAN,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :26/11/2007
O R D E R
R.BASANT, J
------------------------------------
Crl.M.C.No.3544 of 2007
-------------------------------------
Dated this the 26th day of November, 2007
O R D E R
Petitioners face indictment in a prosecution for offences
punishable, inter alia, under Section 326 I.P.C. The petitioners were
not available for trial. The co-accused who faced trial were found not
guilty and acquitted by the trial court. Case against the petitioners
has been split up. Coercive processes have been issued against the
petitioners by the learned Magistrate.
2. The petitioners have come to this Court with a prayer that
powers under Section 482 Cr.P.C may be invoked to quash the
proceedings against the petitioners. What are the reasons ? The
learned counsel for the petitioners contends that in the trial against
the co-accused certain findings have been entered into, which must
reveal to the court that further prosecution in this case would be
unnecessary and a sheer waste of time. In as much as there is no
possibility of anything productive coming out of this prosecution now,
the further proceedings may be quashed by invoking the powers under
Section 482 Cr.P.C, submits the learned counsel for the petitioners.
3. The decision in [Moosa v. Sub Inspector of Police [2006
(1) KLT 552 (F.B)] makes the position crystal clear. The hostility of
Crl.M.C.No.3544 of 2007 2
some of the witnesses and the consequent acquittal of the co-accused
who faced trial are no reason for an absconding co-accused to claim
any benefit or advantage. The petitioners must surrender before the
learned Magistrate and take part in the proceedings. If they are so
entitled, they can certainly claim discharge under Section 239 Cr.P.C.
I am not persuaded to agree that there is any merit or justification in
the prayer for invocation of the extraordinary inherent jurisdiction
under Section 482 Cr.P.C.
4. The learned counsel for the petitioners submits that
warrants of arrest are pending against the petitioners. The petitioners
are willing to surrender before the learned Magistrate and seek
regular bail. But they apprehend that their application for regular bail
may not be considered by the learned Magistrate on merits, in
accordance with law and expeditiously. It is therefore prayed that
directions under Section 482 Cr.P.C may be issued in favour of the
petitioners.
5. It is for the petitioners to appear before the learned
Magistrate and explain to the learned Magistrate the circumstances
under which they could not earlier appear before the learned
Magistrate. I have no reason to assume that the learned Magistrate
would not consider such application on merits, in accordance with law
Crl.M.C.No.3544 of 2007 3
and expeditiously. Every court must do the same. No special or
specific direction appears to be necessary. Sufficient general
directions have already been issued in Alice George v. The Deputy
Superintendent of Police [2003(1) KLT 339].
6. This Crl.M.C is, in these circumstances, dismissed, but with
the specific observation that if the petitioners appear before the
learned Magistrate and apply 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 and expeditiously – on
the date of surrender itself.
(R.BASANT, JUDGE)
rtr/-
Crl.M.C.No.3544 of 2007 4