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Annies vs State Of Kerala on 19 December, 2007

Kerala High Court
Annies vs State Of Kerala on 19 December, 2007
       

  

  

 
 
  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

Crl.M.C.No.3789 of 2007 2

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

observations.

6. Hand over a copy of this order to the learned counsel

for the petitioner.

(R.BASANT, JUDGE)
rtr/-

Crl.M.C.No.3789 of 2007 3

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