IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 47 of 2007()
1. RADHAKRISHNAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.SAJITH KUMAR V.
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :05/01/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.47 of 2007
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Dated this the 5th day of January, 2007
ORDER
The petitioner is the 2nd accused in a prosecution, inter alia,
under Section 452 and 326 read with 149 I.P.C. The petitioner was
not available for trial. There was a case and a counter case. Parties
appear to have settled the dispute. The co-accused have already been
tried and acquitted. The petitioner who was employed abroad could
not appear before the learned Magistrate. The petitioner has now
come to know of the pendency of the split up case against him.
2. The learned counsel for the petitioner submits that in view
of the judgment of acquittal of the co-accused as per the judgment, a
copy of which is produced as Annexure-A1, the proceedings against
him also may be quashed. It is submitted that in that prosecution, all
relevant witnesses have turned hostile to the prosecution and no
incriminating evidence was tendered before the learned Magistrate in
such prosecution against any accused.
3. It is now trite and the decision in Moosa v. Sub
Inspector of Police [2006(1) KLT 552] by the Full Bench makes the
position crystal clear that the hostility of the witnesses in the trial
against the co-accused is by itself not a satisfactory or sufficient
reason to persuade the Court to invoke the powers under Section 482
Crl.M.C.No.47 of 2007 2
Cr.P.C. In fact, to a pointed query by this Court, it is conceded that as
the petitioner has been named as an accused in the F.I.R. The powers
under Section 482 Cr.P.C cannot obviously be invoked to concede any
premium to persons who perjure before court or in favour of the
accused persons who ensure such perjury. I am, in these
circumstances, satisfied that this is certainly not a fit case where the
extraordinary inherent jurisdiction available under Section 482 Cr.P.C
can or ought to be invoked. Such jurisdiction is to be invoked
sparingly and in exceptional cases in aid of justice.
4. The learned counsel for the petitioner alternatively
contends that he will be in a position to satisfy the learned Magistrate
that no non compoundable offence is committed and that all the
compoundable offences allegedly committed have already been
compounded. Of course, it will be open to the petitioner to appear
before the learned Magistrate and contend at the stage of Section
239/240 Cr.P.C that charges need be framed only for compoundable
offences. Such contention must certainly be considered by the
learned Magistrate on merits.
5. Finally the learned counsel for the petitioner submits that
a direction may be issued under Section 482 Cr.P.C to the learned
Magistrate to release the petitioner on bail when he appears before
the learned Magistrate and applies for bail. It is for the petitioner to
Crl.M.C.No.47 of 2007 3
appear before the learned Magistrate and to explain to the learned
Magistrate the circumstances under which he 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 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 petitioner appears 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 and expeditiously –
on the date of surrender itself, unless there are compelling reasons.
(R.BASANT, JUDGE)
rtr/-
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