High Court Kerala High Court

Vellarampara Saidalavi @ Saidali vs The State Of Kerala on 7 August, 2008

Kerala High Court
Vellarampara Saidalavi @ Saidali vs The State Of Kerala on 7 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 283 of 2005()


1. VELLARAMPARA SAIDALAVI @ SAIDALI,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REP. BY THE
                       ...       Respondent

                For Petitioner  :SRI.BABU S. NAIR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :07/08/2008

 O R D E R
                          M.C. HARI RANI, J.

                 ======================

                        CRL.M.C.NO. 283 OF 2005

               ========================

           Dated this the 7TH DAY OF AUGUST 2008

                                ORDER

The petitioner is the sole accused in L.P.No.3/2005 on the file of

the Additional Sessions Court(Adhoc No.1), Manjeri. The case against

him was split up as revealed from Annexure-A, the judgment dated

28-7-2004 in S.C.No.442/2001. Altogether 11 accused are there in

Crime No.95/97 of Vazhikakdavu police station registered for the

offence under Sections 395 and 120B of the Indian Penal Code.

Accused Nos.3,4,5 and 7 to 11 faced the trial and were acquitted by

the learned Additional Sessions Judge as per the above mentioned

judgment, Annexure-A. This petition is filed by the first accused in

the same crime to quash the entire proceedings against the first

accused, the petitioner, in L.P.No.3/2005 on the file of the Additional

Sessions Court(Adhoc-I)Manjeri.

2. Heard the learned counsel for the petitioner and the learned

Public Prosecutor.

CRL.M.C.NO. 283/2005 -2-

3. It is submitted by the learned counsel appearing for the

petitioner that all the material witnesses examined in

S.C.No.442/2001 turned hostile and did not support the prosecution

case. Therefore, the learned Sessions Judge acquitted some of the

co-accused in the same crime. Therefore, no useful purpose will be

served by directing the petitioner to face the trial and the continuance

of the proceedings against the petitioner will be an abuse of process of

the court and the same is liable to be quashed.

4. It is submitted by the learned counsel appearing for the

petitioners that even if the charge against the petitioners are tried,

there is no likelihood of proving the same as the independent

prosecution witnesses already examined before the trial court turned

hostile and some of the accused persons in the same crime were

acquitted as revealed from the judgment of the trial court produced as

Annexure-A. It is also submitted by the learned counsel for the

petitioner that the finding of the court below in the above mentioned

judgment is that the prosecution failed to prove the allegations and so

the continuance of prosecution against the petitioner will be a sheer

waste of judicial time and in the interest of justice, the continuance of

the proceedings against him will be an abuse of process of law and is

CRL.M.C.NO. 283/2005 -3-

liable to be quashed.

5. It is submitted by the learned Public Prosecutor that the point

to be decided in this petition is covered by the decision in Moosa v.

Sub Inspector of Police, 2006(1)K.L.T.552 wherein it is held by

the Full Bench of this Court that acquittal of some of the accused after

trial will not entitle co-accused for an acquittal invoking the inherent

powers under Section 482 of the Code of Criminal procedure.

6. It is held in the aforementioned decision that “the power

under S.482 Cr.P.C.cannot be invoked to prevent the trial of the

petitioners/accused solely by referring to the overt act played by the

accused as spoken to by the witnesses in the case of the co-accused

and this court cannot in exercise of its jurisdiction under

S.482Cr.P.C.quash the proceedings and prevent the trial. Hence the

dictum laid down in Arun Kumar’s case to the extent it has taken a

contrary view of what is stated above, is not a correct law and the

same is overruled. The legal position has been summarised also

wherein clauses (v),(vii)(viii), (ix) read as follows:

(v)In a trial against the co-accused the prosecution is not called

upon, nor is it expected to adduce evidence against the

absconding co-accused. In such trial the prosecution cannot

be held to have the opportunity or obligation to adduce all

evidence against the absconding co-accused. The fact that

the testimony of a witness was not accepted or acted upon in

CRL.M.C.NO. 283/2005 -4-

the trial against the co-accused is no reason to assume that

he shall not tender incriminating evidence or that his

evidence will not be accepted in such later trial.

(vii) The judgment of acquittal of a co-accused in a criminal

trial is not admissible under Ss.40 to 43 of the Evidence Act to

bar the subsequent trial of the absconding co-accused and

cannot hence be reckoned as a relevant document while

considering the prayer to quash the proceedings under S.482

Cr.P.C. Such judgments will be admissible only to show as to

who were the parties in the earlier proceedings or the factum

of acquittal.

(viii) While considering the prayer for invocation of the

extraordinary inherent jurisdiction to serve the ends of

justice, it is perfectly permissible for the court to consider the

bona fides – the cleanliness of the hands of the seeker. If he is

a fugitive from justice having absconded or jumped bail

without sufficient reason or having waited for manipulation of

hostility of witnesses, such improper conduct would certainly

be a justifiable reason for the court to refuse to invoke its

powers under S.482 of the Code of Criminal Procedure.

(ix) The fact that the co-accused have secured acquittal in the

trial against them in the absence of absconding co-accused

cannot by itself be reckoned as a relevant circumstance while

considering invocation of the powers under S.482 of the Code

of Criminal Procedure.”

7. In the light of the dictum laid down in the above said

decision which is squarely applicable to the facts of this case, I find

CRL.M.C.NO. 283/2005 -5-

that this Court cannot exercise the inherent jurisdiction under

Section 482 of the Code of Criminal Procedure and there is no merit in

this petition.

In the result, the Crl.M.C.is dismissed.

M.C. HARI RANI
JUDGE

ks.