IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 573 of 2007()
1. SAJEEVAN @ SAJI, AGED 35 YEARS,
... Petitioner
Vs
1. STATE - REPRESENTED BY
... Respondent
For Petitioner :SRI.M.SASINDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :02/03/2007
O R D E R
R.BASANT, J
------------------------------------
Crl.M.C.No.573 of 2007
-------------------------------------
Dated this the 2nd day of March, 2007
ORDER
The petitioner is the 7th accused in a prosecution, inter alia,
under Section 307 read with 149 I.P.C. All the co-accused have
already been tried, found not guilty and acquitted. The petitioner was
not available for trial. The case against him has been split up and the
same is pending as C.P.152 of 2003.
2. The petitioner has come to this Court with a prayer that
powers under Section 482 Cr.P.C may be invoked to quash the
proceedings against the petitioner.
3. What is the reason ? According to the learned counsel for
the petitioner, the petitioner could not be present before court on
account of reasons beyond his control. According to him, the
petitioner is absolutely innocent. He was not available at the place of
occurrence at all at the relevant time and was employed in Bombay.
He submits that of the 3 eye witnesses, 2 of them are not living now.
The third one-CW3, was examined in the trial against the co-accused
and he had turned hostile and had not supported the prosecution case
at all. In these circumstances, the counsel prays that powers under
Section 482 Cr.P.C may be invoked.
Crl.M.C.No.573 of 2007 2
4. The decision in Moosa v. Sub Inspector of Police [2006
(1) KLT 552(F.B)] is authority for proposition that the acquittal of the
accused is by itself no reason for the absconding co-accused to claim
any advantage. The counsel submits that this case would fall within
the exception which can be carved out of Moosa as the substratum of
the prosecution case is lost by the acquittal of the co-accused. I am
unable to accept this contention. Merely because the hostile witness
did not identify the other accused who stood trial in the earlier
proceedings, it cannot be assumed lightly that such witness will not be
able to identify the petitioner. That would be an improper and
perverse assumption not supported by any circumstances.
5. I am, in these circumstances, satisfied, that the petitioner,
who has been absconding all the while and who now has surfaced after
the acquittal of the co-accused and wants to quash the proceedings
under Section 482 Cr.P.C, cannot succeed in that venture. The
petitioner must follow the ordinary and regular procedure of appearing
before the court for trial and claim discharge/acquittal as the case may
be.
6. The learned counsel for the petitioner submits that the
petitioner apprehends that his application for bail may not be
considered by the learned Magistrate on merits, in accordance with law
Crl.M.C.No.573 of 2007 3
and expeditiously. I find no merit in that contention. It is 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 such application on
merits, in accordance with law and expeditiously. Every court must do
the same. No special or specific direction appears to be necessary.
Sufficient general directions have already been issued in Alice George
v. The Deputy Superintendent of Police [2003(1) KLT 339].
7. This Crl.M.C is, in these circumstances, dismissed, but with
the specific observation 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 appropriate orders on merits and expeditiously –
on the date of surrender itself, unless exceptional and compelling
reasons are there.
(R.BASANT, JUDGE)
rtr/-
