High Court Kerala High Court

Ponnichi Subair vs State Of Kerala on 23 October, 2008

Kerala High Court
Ponnichi Subair vs State Of Kerala on 23 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3985 of 2008()



1. PONNICHI SUBAIR
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.P.M.HABEEB

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :23/10/2008

 O R D E R
                             R. BASANT, J.
                -----------------------------------------------
                    Crl.M.C. No. 3985 OF 2008
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              Dated this the 23rd day of October, 2008

                                O R D E R

Petitioner faces indictment as the 9th accused in a

prosecution for offences punishable, inter alia, under Section 436

read with Section 149 IPC. Final report has already been filed.

Cognizance has been taken. Committal proceedings have been

registered. But the petitioner was not available to be proceeded

with. The case against him is hence pending before the learned

Magistrate as a committal proceeding in the long pending list.

Some of the co-accused who also faced indictment have now

been found not guilty and acquitted. Some other co-accused had

come to this Court prior to the directions in Moosa v. Sub

Inspector of Police [2006(1) KLT 552] and prosecution against

them was quashed also. The petitioner is employed abroad. He

has now come to this Court with the prayer that powers under

Section 482 Cr.P.C may be invoked to quash the proceedings

against him.

2. It is by now trite after the decision of the Full Bench in

Moosa(supra) that an absconding co-accused cannot claim any

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benefit or advantage on the basis of a judgment of acquittal in the

trial against the co-accused. Want of evidence in such trial

against the co-accused which entitled them to an acquittal is no a

reason for an absconding accused to claim quashing of

proceedings by invoking the jurisdiction under Section 482 Cr.P.C,

it is now well settled. In these circumstances it is certainly for the

petitioner to appear before the learned Magistrate and explain to

the learned Magistrate the circumstances in which he could not

earlier appear and seek regular bail. If such an application is filed,

needless to say that, the learned Magistrate must proceed to

consider such application for bail on merits, in accordance with law

and expeditiously on the date of surrender itself, provided

sufficient prior notice of the bail application is given to the

Prosecutor in charge of the case.

3. I find no reason to interfere with the prosecution pending

against the petitioner. This petition, in these circumstances, is

dismissed but subject to the above directions regarding the

disposal of the bail application.

4. Needless to say, the petitioner’s option to claim discharge

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under Section 227 Cr.P.C before the Sessions Court shall remain

unfettered by the dismissal of this Crl.MC.

5. Hand over copy of this order to the learned counsel for the

petitioner.

R. BASANT, JUDGE
ttb

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