IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2364 of 2007()
1. MOIDUNNI, S/O SAID HAJI,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE,
... Respondent
For Petitioner :SRI.MANSOOR.B.H.
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :24/07/2007
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - - - -
Crl.M.C.No. 2364 of 2007
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 24th day of July, 2007
O R D E R
The petitioner is the third accused in Crime No. 194 of 2002
of Kolathur Police Station registered, inter alia, under Section 308
r/w. 149 I.P.C. At the crime stage the petitioner was enlarged on bail,
it is submitted. Final report was filed. Cognizance was taken. But
the petitioner was not available for committal. The co-accused, who
were available, were committed and they stood trial before the
Sessions Court. The Sessions Court found the co-accused, who stood
trial to be not guilty and acquitted them.
2. The petitioner has now come before this Court to invoke the
powers under Section 482 Cr.P.C. to quash the proceedings against
the petitioner in as much as the co-accused have already been
acquitted.
3. The dictum in Moosa v. S.I. of Police (2006 (1) KLT
552) stares at the petitioner. It is now trite that the mere fact that the
co-accused have been found not guilty and acquitted on the basis of
the evidence in the trial held against them is no reason for an
absconding co-accused to claim any benefit or advantage therefrom.
Crl.M.C.No. 2364 of 2007
2
More over, a perusal of the judgment shows that in that case against the co-
accused the victim could not be examined. Of course, there is a statement
that the father of the victim came before the court and said that the victim
has no grievance at all. The advantage or benefit of the non-examination
of the victim cannot certainly be claimed by the absconding co-accused. In
these circumstances it is evident that following the dictum in Moosa, the
petitioner will have to stand trial.
4. The learned counsel for the petitioner however submits that the
petitioner is now willing to surrender before the learned Magistrate and
claim regular bail. But he apprehends that his application for bail may not
be considered by the learned Magistrate on merits, in accordance with law
and expeditiously.
5. I find no reason to invoke the jurisdiction under Section 482
Cr.P.C. It is certainly for the petitioner to appear before the learned
Magistrate and 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 the
application for bail to be filed by the petitioner when he surrenders before
the learned Magistrate, on merits, in accordance with law and
Crl.M.C.No. 2364 of 2007
3
expeditiously. Every court must do the same. No special or specific
direction appears to be necessary. Sufficient general directions have
already been issued by this Court in the decision in Alice George v.
Dy.S.P. of Police (2003 (1) KLT 339).
4. This application is accordingly dismissed. I may however hasten
to observe 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 orders on
merits, in accordance with law and expeditiously – on the date of surrender
itself.
(R. BASANT)
Judge
tm