IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3985 of 2008()
1. PONNICHI SUBAIR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.M.HABEEB
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/10/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 3985 OF 2008
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Dated this the 23rd day of October, 2008
O R D E R
Petitioner faces indictment as the 9th accused in a
prosecution for offences punishable, inter alia, under Section 436
read with Section 149 IPC. Final report has already been filed.
Cognizance has been taken. Committal proceedings have been
registered. But the petitioner was not available to be proceeded
with. The case against him is hence pending before the learned
Magistrate as a committal proceeding in the long pending list.
Some of the co-accused who also faced indictment have now
been found not guilty and acquitted. Some other co-accused had
come to this Court prior to the directions in Moosa v. Sub
Inspector of Police [2006(1) KLT 552] and prosecution against
them was quashed also. The petitioner is employed abroad. He
has now come to this Court with the prayer that powers under
Section 482 Cr.P.C may be invoked to quash the proceedings
against him.
2. It is by now trite after the decision of the Full Bench in
Moosa(supra) that an absconding co-accused cannot claim any
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benefit or advantage on the basis of a judgment of acquittal in the
trial against the co-accused. Want of evidence in such trial
against the co-accused which entitled them to an acquittal is no a
reason for an absconding accused to claim quashing of
proceedings by invoking the jurisdiction under Section 482 Cr.P.C,
it is now well settled. In these circumstances it is certainly for the
petitioner to appear before the learned Magistrate and explain to
the learned Magistrate the circumstances in which he could not
earlier appear and seek regular bail. If such an application is filed,
needless to say that, the learned Magistrate must proceed to
consider such application for bail on merits, in accordance with law
and expeditiously on the date of surrender itself, provided
sufficient prior notice of the bail application is given to the
Prosecutor in charge of the case.
3. I find no reason to interfere with the prosecution pending
against the petitioner. This petition, in these circumstances, is
dismissed but subject to the above directions regarding the
disposal of the bail application.
4. Needless to say, the petitioner’s option to claim discharge
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under Section 227 Cr.P.C before the Sessions Court shall remain
unfettered by the dismissal of this Crl.MC.
5. Hand over copy of this order to the learned counsel for the
petitioner.
R. BASANT, JUDGE
ttb
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