IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1736 of 2008()
1. BHADRAKUMAR, S/O.BHARGAVAN
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
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. 1736 of 2008
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Dated this the 18th day of June, 2008
ORDER
The petitioner, along with two co-accused, faced a
prosecution under Sec.55(a) and (h) of the Kerala Abkari Act.
The crux of the allegations is that accused 2 and 3 had sold
illicit liquor in a toddy shop of which the petitioner is the
owner/licensee. The petitioner was not available for trial.
The case against him was split up. The co-accused stood trial.
In the course of the trial, it was found that the 2nd accused who
faced trial is not guilty of the offence alleged against him.
Accordingly, he was found not guilty and acquitted.
2. According to the petitioner’s counsel, the petitioner is
now entitled to the invocation of the extraordinary inherent
jurisdiction under Sec.482 of the Cr.P.C. The co-accused
having been acquitted, the prosecution against the petitioner
Crl.M.C. No. 1736 of 2008 -: 2 :-
cannot produce any tangible or positive result. It is hence
prayed that proceedings against the petitioner may be quashed.
3. I have been taken through the judgment of acquittal
rendered in favour of one of the two accused who were allegedly
selling illicit liquor in the shop allegedly belonging to the
petitioner. It is seen that the judgment was rendered not on
merits completely; but on the principal ground that the crucial
witness who detected the offence was not examined by the
prosecution. The field is occupied by a Full Bench dictum in
Moosa v. Sub Inspector of Police (2006 (1) KLT 552) and the
said decision is authority for the proposition that an absconding
co-accused cannot obviously rely on the inability or failure on the
part of the prosecution to make all evidence available before
court in such trial. The option of the prosecution to produce the
principal witness/detecting officer in the trial against the
petitioner remains. What view the court will take if it is satisfied
of the vital facts on examination of the detecting officer, cannot
be speculated now. I am, in these circumstances, satisfied that
the contention of the learned counsel for the petitioner that the
facts of instant case must take the petitioner out of the sweep of
the dictum in Moosa v. Sub Inspector of Police (cited supra)
cannot be accepted.
4. In the result, this Crl.M.C. is dismissed. I may hasten to
Crl.M.C. No. 1736 of 2008 -: 3 :-
observe that the dismissal of this Crl.M.C. will not in any way
fetter the rights of the petitioner to raise all his contentions
before the learned Magistrate to claim discharge/acquittal at the
appropriate stage. Such contentions will have to be considered
on merits and appropriate decision taken.
5. A warrant of arrest is pending against the petitioner, it
is further lamented. The petitioner can appear before the
learned Magistrate and seek regular bail. Sufficient general
directions have already been issued in the decision in Alice
George v. Deputy Superintendent of Police (2003 (1) KLT
339). No special or specific directions appear to be necessary.
Every court must do the same. If the petitioner surrenders
before the learned Magistrate and seeks 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.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. to Judge