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.
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Crl.M.C. No. 2752 of 2008
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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
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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
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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
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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/
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