IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1737 of 2008()
1. BHADRAKUMAR, S/O.BHARGAVAN,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.B.KRISHNA MANI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :18/06/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 1737 OF 2008
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Dated this the 19th day of June, 2008
O R D E R
Petitioner faced indictment as first accused in a prosecution
under Section 55 (a) and (h) of the Kerala Abkari Act. Petitioner,
the 1st accused was not available for trial. Accused 2 and 3 stood
for trial and they have found not guilty as per Annexure A3
judgment.
2. Petitioner has now come to this Court with a prayer that
the co-accused having been found not guilty and acquitted,
powers under Section 482 Cr.P.C may be invoked to quash the
split up proceedings against the petitioner. The counsel conscious
of the dictum of the Full Bench in Moosa V. Sub Inspector of
Police [2006(1) KLT 552 ] contends that the facts of this case
must help to take his case out of the sweep of the dictum in
Moosa(supra).
3. I have been taken through Annexure A3 judgment. The
judgment of acquittal of accused 2 and 3 is on the plank that the
prosecution has not been able to examine one crucial witness in
that trial. Consequently, there is no specific finding on merits on
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any crucial aspect in favour of the petitioner. In as much as the
prosecution could not secure presence of the crucial witness in the
trial against the co-accused, the co-accused who faced trial got
the benefit of it and were acquitted. Certainly, the petitioner
cannot take advantage of the inability/failure of the prosecution to
produce the witness in the trial against co-accused. Petitioner
certainly falls within the sweep of the dictum of Moosa(supra) and
the prayer for quashing all the proceedings cannot be accepted.
This Crl.M.C is, in these circumstances, dismissed.
4. I must hasten to observe that this judgment will not in any
way fetter the right of the petitioner to take up all defences and
claim discharge/acquittal from the trial court at the appropriate
stage. The said prayer must be considered on merits and an
appropriate decision rendered by the trial court.
5. A warrant of arrest is pending against the petitioner, it is
submitted. It is for the petitioner to surrender before the learned
Magistrate and seek regular bail. Sufficient general directions
have been issued in Alice George Vs. Deputy Superintendent
of Police [2003 (1) KLT 339].
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6. In the result, this petition is dismissed but with the specific
observation that if the petitioner surrenders 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, in accordance with
law and expeditiously – on the date of surrender itself. No further
and specific directions appear to be necessary.
R. BASANT, JUDGE
ttb
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