IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 283 of 2005()
1. VELLARAMPARA SAIDALAVI @ SAIDALI,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :07/08/2008
O R D E R
M.C. HARI RANI, J.
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CRL.M.C.NO. 283 OF 2005
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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
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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
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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.