IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3364 of 2007()
1. KABEER, S/O. MOIDU, AGED 34,
... Petitioner
Vs
1. STATE OF KERALA, (REP. BY CIRCLE
... Respondent
For Petitioner :SRI.C.ANILKUMAR (KALLESSERIL)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/11/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.3364 of 2007
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Dated this the 6th day of November 2007
O R D E R
The petitioner, along with the co-accused, faces allegations
for offences punishable inter alia under Section 386 I.P.C. The
petitioner was not available for trial. The case against him was
split up. The co-accused, who faced trial, were found not guilty
and acquitted. The petitioner has now come before this court
with a prayer that the surviving prosecution against him may be
quashed.
2. What is the reason? The short reason urged is that
the co-accused have already been tried and acquitted and there
is only bleak prospects of the prosecution against the petitioner
ending in conviction. In these circumstances, it is prayed that
the proceedings against the petitioner may be quashed. The
decision in Moosa vs. Sub Inspector of Police [2006(1) KLT 552
(FB)] stares at the petitioner. The mere fact that the co-accused
have secured an acquittal on the basis of the evidence tendered
against them in such prosecution is no reason at all for an
absconding co-accused to claim any benefit or advantage on the
basis of such acquittal. Moreover, a perusal of the said judgment
Crl.M.C.No.3364/07 2
of acquittal which is produced as Annexure A clearly shows that
the principal witness/victim/CW2 who was allegedly abducted
was not available for trial at that stage before the learned
Additional Assistant Sessions Judge. The advantage or benefit of
the non-examination of that vital witness which was conceded to
the co-accused cannot obviously be claimed by the petitioner
herein who did not face trial along with the co-accused. I am, in
these circumstances, satisfied that the prayer of the petitioner
cannot be accepted. The same deserves to be rejected.
3. The learned counsel for the petitioner then submits
that a warrant of arrest issued by the learned Magistrate is
chasing the petitioner. According to the petitioner, his absence
earlier was not wilful or deliberate. The petitioner is willing to
surrender before the learned Additional Assistant Sessions Judge
and seek regular bail. But he apprehends that his application
for bail may not be considered by the learned Judge on merits, in
accordance with law and expeditiously. He, therefore, prays
that directions under Section 482 Cr.P.C. may be issued to the
learned Judge to release the petitioner on bail when he appears
and applies for bail.
Crl.M.C.No.3364/07 3
4. It is for the petitioner to appear before the learned
Judge and explain to the learned Judge, the circumstances under
which he could not earlier appear before the learned Judge. I
find absolutely no reason to assume that the learned Judge would
not consider the application for bail to be filed by the petitioner
on merits, in accordance with law and expeditiously. Every court
must do the same. No special or specific directions appear to be
necessary. Sufficient general directions have been issued in
Alice George vs. Deputy Superintendent of Police [2003(1)KLT
339].
5. In the result, this Criminal Miscellaneous Case is
dismissed but with the specific observation that if the petitioner
surrenders before the learned Judge and applies for bail, after
giving sufficient prior notice to the Prosecutor in charge of the
case, the learned Judge must proceed to pass appropriate orders
on merits, in accordance with law and expeditiously – on the date
of surrender itself.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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Crl.M.C.No.3364/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007