Abdul Nasar v. The Station House Officer, Payyannur Police Station & The State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2007-03-23
Court Decision / Holding: The Criminal Miscellaneous Case is dismissed with the above specific observations.
Final Disposition: Dismissed with observations.

Parties to the Case

Appellants / Petitioners

Abdul Nasar

Respondents

The Station House Officer, Payyannur Police Station, Payyannur
The State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• C. Khalid
• T. P. Sajid

Counsels for Respondents

• Public Prosecutor S. U. Nazer

Case Synopsis & Summary

This is a Kerala High Court Criminal Miscellaneous Case (Crl.M.C. No. 871 of 2007) arising from a prosecution under Sections 341 and 323 read with Section 34 IPC against Abdul Nasar, the first accused. The co-accused were tried earlier and acquitted; witnesses were not examined in that trial. The case against the petitioner was split due to his non-appearance, and a warrant of arrest continues to chase him. He seeks to invoke the inherent powers of the High Court under Section 482 Cr.P.C. to terminate the split-up prosecution prematurely, arguing that the offences are compoundable and bailable, and that the continued summons and appearance demands would cause prejudice. The court cites Moosa v. Sub Inspector of Police (Full Bench) to explain that absconding co-accused cannot derive benefit from the acquittal of others, especially when the complainant is unavailable for trial. It notes that the petitioner's inability to appear is a factor, but not a ground to grant relief. The court also cites Alice George v. Deputy Superintendent of Police for general directions, indicating Magistrates are to apply the law without necessitating special directions. Ultimately, the petition is dismissed, with the court observing that the Magistrate should exercise discretion and that exemption from personal appearance may be granted where appropriate. The decision underscores that the extraordinary powers under Section 482 Cr.P.C. are not to be invoked in favour of the petitioner.

Provisions of Law Cited

Section 341 IPCSection 323 IPCSection 34 IPCSection 482 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner urged that Section 482 Cr.P.C. should be invoked to terminate the split-up prosecution where the co-accused have been acquitted and witnesses were not available for the earlier trial. He argued that the offences are compoundable and bailable, and that continued demands for personal appearance would cause undue prejudice; the inability to appear was beyond his control and hence bail should be considered by the Magistrate. He contended that continuing proceedings serve no useful purpose and would squander resources.

Contentions of Respondents

The document does not contain explicit separate arguments from the respondents; instead the court records the petitioner's submissions and proceeds with its analysis, noting general directions and the need for the Magistrate to apply the law. The State/Prosecutor’s role is reflected in the supporting position that the Magistrate has to exercise discretion consistent with law and that no special directions are required.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Moosa v. Sub Inspector of Police	2006(1) KLT 552 (FB)	Positive	Full Bench decision clearly held that absconding co-accused are not entitled to benefit from acquittals in separate trials; the High Court follows this reasoning in denying relief under Section 482 Cr.P.C.
Alice George v. Deputy Superintendent of Police	2003(1)KLT 339	Mentioned Only	Cited for general directions; not relied upon for the core decision, but referenced as authority for general magistrate conduct.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 23RD MARCH 2007 / 2ND CHAITHRA 1929 Crl.MC.No. 871 of 2007() -----------------------CC.660/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR CRIME NO.123/2003 OF S.H.O.PAYYANNUR .................... PETITIONER: 1ST ACCUSED ---------------------------------------- ABDUL NASAR, AGED 30 YEARS, S/O N.T.P. VALIABDULLA, RAMANTHALI, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.T.P.SAJID RESPONDENTS: COMPLAINANT & STATE ----------------------------------------------------------- 1. THE STATION HOUSE OFFICER, PAYYANNUR POLICE STATION, PAYYANNUR. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.871 of 2007 ---------------------------------------Dated this the 23[rd] day of March 2007 ## **O R D E R** The petitioner is the first accused in a prosecution under Sections 341 and 323 read with 34 I.P.C. The co-accused has already faced trial and has been found not guilty and acquitted. No witnesses supported the prosecution in that case. The complainant was not available to be examined also. The case against the petitioner has been split up since he was not available for trial. He finds himself in an unenviable predicament as the warrant of arrest issued by the learned Magistrate is chasing him. The petitioner is willing to surrender before the learned Magistrate. The petitioner submits that no useful purpose would be served by continuation of the proceedings against him. The co-accused have already been tried and acquitted. In these circumstances, it is prayed that powers under Section 482 Cr.P.C may be invoked to bring to premature termination the split up prosecution against the petitioner. Crl.M.C.No.871/07 2 2. In Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)] the Full Bench has considered the question whether an absconding co-accused is entitled for any benefit or advantage from the acquittal of the co-accused in a separate trial held against him. The question has been clearly answered against the petitioner in that case. That the witnesses have turned hostile to the prosecution when the co-accused faced trial is certainly not a valid reason to justify invocation of powers under Section 482 Cr.P.C. Moreover, in the facts of the instant case, it must be noted that the complainant admittedly was not available to be examined for such trial against the co-accused, the inability of the prosecution to secure the presence of the complainant in the trial which was held earlier may deliver an advantage to the accused who faced trial but certainly that cannot deliver any advantage to the absconding co-accused. It would be presumptuous on the part of the court to assume that the complainant/injured will not be available to tender evidence even in the trial against the petitioner. Iin these circumstances, the extraordinary inherent powers cannot be invoked in favour of the petitioner. Crl.M.C.No.871/07 3 3. The learned counsel for the petitioner submits that the offences are compoundable and bailable. The petitioner's inability to appear earlier was on account of reasons beyond his control. He apprehends that the learned Magistrate may not consider his application for bail on merits, in accordance with law and expeditiously. Therefore, appropriate directions may be issued, it is submitted. 3. I do not find it necessary to issue any special or specific directions. Sufficient general directions have already been issued in Alice George vs.Deputy Superintendent of Police [2003(1)KLT 339]. I have no reason to assume that the learned Magistrate is not aware of the law or shall not comply with law. The learned Magistrate must do the same. 4. The learned counsel for the petitioner further submits that the unnecessary insistence on the personal appearance of the petitioner will work out great prejudice and hardship to the petitioner. All offences are summons offences and bailable too. I find no reason why unnecessary insistence must be made by the learned Magistrate on the personal appearance of the petitioner. The petitioner can apply for exemption from personal Crl.M.C.No.871/07 4 appearance before the learned Magistrate and the learned Magistrate can consider such application, in accordance with law and pass appropriate orders. 5. In the result, this Criminal Miscellaneous Case is dismissed but with the above specific observations. Hand over copy of this order to the learned counsel for the petitioner. **(R.BASANT, JUDGE)** jsr **==> picture [91 x 14] intentionally omitted <==** PA to Judge Crl.M.C.No.871/07 5 Crl.M.C.No.871/07 6 ## **R.BASANT, J** C.R.R.P.No. ORDER 21ST DAY OF JULY 2006