IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl MC No. 3789 of 2007() 1. ANNIES, S/O. AZIZ, AGED 29 YEARS, ... Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent For Petitioner :SRI.A.SHAFEEK For Respondent : No Appearance The Hon'ble MR. Justice R.BASANT Dated :19/12/2007 O R D E R R.BASANT, J ------------------------------------ Crl.M.C.No.3789 of 2007 ------------------------------------- Dated this the 19th day of December, 2007 O R D E R
Petitioner faces indictment in a prosecution for offences
punishable, inter alia, under Sections 452 and 332 r/w 149 I.P.C.
Co-accused who faced trial were found not guilty and acquitted.
The petitioner was not available for trial. The case against him
(2nd accused) was refiled. The petitioner has now entered
appearance before the learned Magistrate. He has been enlarged
on bail. The petitioner now prays that the case against him may
be quashed invoking the powers under Section 482 Cr.P.C.
2. What is the reason ? The learned counsel for the
petitioner only submits that the co-accused have already been
found not guilty and acquitted. No other reasons are urged. It is
now trite after the decision of the Full Bench in [Moosa v. Sub
Inspector of Police [2006(1) KLT 552] that an absconding co-
accused cannot take advantage of the judgment of acquittal
secured by the accused who took part in the trial. In the instant
case, I note that the prosecution was not able to secure the
evidence of the principal witness in the trial against the co-
accused as that witness was not available. The advantage of that
non availability can be claimed only by the accused who stood
trial and not by an absconding co-accused like the petitioner who
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was not present before court. In the trial to be held against the
petitioner, the prosecution can certainly attempt to secure
presence of such witness. In short, the prayer to quash the
proceedings cannot be accepted.
3. The learned counsel for the petitioner then submits
that there may be a direction for expeditious disposal. He is
employed abroad. He has to return to his place of employment.
Before that, trial may be permitted to be held.
4. It is for the petitioner to move the learned Magistrate
for an out of turn expeditious disposal of the case. The learned
Magistrate must certainly consider such request and pass
appropriate orders. In case trial against the petitioner could not
be completed, certainly the petitioner can, in accordance with law
and subject to necessary safeguards, request the learned
Magistrate to exempt him from personal appearance. Such
application must also be considered by the learned Magistrate on
merits, in accordance with law and expeditiously.
5. This Crl.M.C is dismissed, but with the above
6. Hand over a copy of this order to the learned counsel
for the petitioner.
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