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Sudheesn vs State Of Kerala on 11 August, 2008

Kerala High Court
Sudheesn vs State Of Kerala on 11 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 2752 of 2008()


1. SUDHEESN, AGED 42,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.C.V.MANUVILSAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :11/08/2008

 O R D E R
                          R. BASANT, J.
            -------------------------------------------------
                  Crl.M.C. No. 2752 of 2008
            -------------------------------------------------
         Dated this the 11th day of August, 2008

                               ORDER

The petitioner, along with the co-accused, faced

indictment as 5th accused in a prosecution for offences

punishable, inter alia, under Secs.448 and 427 read with

Sec.149 IPC and Sec.3(1)(c) of the PDPP Act.

2. The crux of the allegations against the petitioner is

that he, along with the co-accused – altogether there were 10

accused persons, was the member of an unlawful assembly of

persons, who, in prosecution of their common object,

trespassed into the office premises of the Kathiroor Co-

operative Housing Society and indulged in wanton acts of

mischief and violence. Investigation was completed. Final

report was filed. All other co-accused, except the petitioner

(A5) and another (A6), were available for trial. At the end of

Crl.M.C. No. 2752 of 2008 -: 2 :-

the trial, accused 1 to 4 and 7 to 10 were found not guilty and

acquitted. The de facto complainant in the complaint had not

named the accused persons. But, in the course of 161

examination, he as well as another (P.Ws.1 and 2) had identified

the accused persons, including the petitioner herein. It is on the

basis of such statements of P.Ws.1 and 2 that the final report was

filed.

3. The petitioner prays that the proceedings against him

may be quashed invoking the jurisdiction under Sec.482 Cr.P.C.

What is the reason? The learned counsel submits that inasmuch

as P.Ws.1 and 2 did not support the prosecution case at all and

went on to say that they have not seen any incident whatsoever,

it would be idle to continue the prosecution against the

petitioner on the basis of the sworn statements of P.Ws.1 and 2

especially when P.W.1, who lodged the First Information

Statement, had not named any accused persons in the First

Information Statement.

4. This application is opposed by the learned Public

Prosecutor. I find merit in the opposition. The decision in

Moosa v. Sub Inspector of Police (2006 (1) KLT 552) is

Crl.M.C. No. 2752 of 2008 -: 3 :-

authority for the proposition that the testimony of the witnesses

in the trial against the co-accused cannot confer any benefit or

advantage on the absconding co-accused.

5. The petitioner was not available before court in such

trial and there was no question of adducing any evidence against

the petitioner. The mere fact that P.Ws.1 and 2 – the only eye

witnesses cited, turned hostile in the trial against the co-

accused is, it is now trite by itself, no ground to invoke the

jurisdiction under Sec.482 Cr.P.C. At the time of admission of

this case, it would appear that there was some doubts

entertained by the court as to whether the dictum in Madhan

Mohan Abbot v. State of Punjab (2008 AIR SCW 2287) would

apply or not and, it appears, that was the reason why this

Crl.M.C. was admitted. It is now conceded at all hands that the

dictum in Madhan Mohan Abbot has no application

whatsoever to the facts of this case.

6. I am satisfied, in these circumstances, that this is not a

fit case where the proceedings against the petitioner deserves to

be terminated prematurely by invocation of the powers under

Sec.482 Cr.P.C. The petitioner must appear before the learned

Crl.M.C. No. 2752 of 2008 -: 4 :-

Magistrate and seek discharge or acquittal as the case may be at

the appropriate stage.

7. In the result, this Crl.M.C. is dismissed. I may hasten

to observe that I have not intended to express any opinion on

merits on the allegations raised against the petitioner or on his

right to claim discharge/acquittal under the ordinary provisions

of the Code. I have only chosen to take the view that the powers

under Sec.482 Cr.P.C. do not deserve to be invoked.

(R. BASANT, JUDGE)

Nan/

Crl.M.C. No. 2752 of 2008 -: 5 :-

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