High Court of KeralaSingle Judge2007-04-13Criminal Miscellaneous Case dismissed

Avinash v. State of Kerala

Case / Petition Number:Crl.M.C.No.1203/07

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2007-04-13
Court Decision / Holding: Crl.M.C. dismissed. The court held that mere acquittal of co-accused is not a ground to quash proceedings against an absconding accused, and directed that if the petitioner surrenders and applies for bail, the Magistrate should consider the application on merits and pass orders expeditiously on the date of surrender.
Final Disposition: Criminal Miscellaneous Case dismissed

Parties to the Case

Appellants / Petitioners

Avinash s/o Thampan

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam, Kochi-31
Sub Inspector of Police, Kayamkulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri George Varghese (Perumpallikuttiyil)
• Sri A.R. Dileep
• Smt. Kavitha Gangadharan

Counsels for Respondents

• Sri S.U. Nazar (Public Prosecutor)

Case Synopsis & Summary

Avinash, the seventeenth accused in a larger case, approached the Kerala High Court under Section 482 Cr.P.C. seeking to quash proceedings surviving against him for offences punishable under Section 326 read with Section 149 IPC. The background is that there were nineteen accused; the co-accused were tried, and crucial witnesses examined for the co-accused turned hostile, leading to their acquittal. Avinash did not appear for trial and his case was split up as an absconder. He argues that the acquittal of co-accused and the hostile evidence justify quashing the proceedings against him. He also contends about potential composition of offences by the victims, claiming the magistrate should be allowed to decide on the charges and their compoundability, and that such composition could affect termination of proceedings. He further submits that he is abroad on leave and wishes an early hearing for framing of charges, and requests consideration of bail if surrendered. The court clarifies that mere acquittal of co-accused is not a ground to quash against an absconding accused, citing Moosa v. Sub Inspector of Police (Full Bench) for this proposition. It notes that the victim’s potential composition and non-compoundable offences should be addressed by the magistrate. The petition is ultimately dismissed, but with directions that on surrender and upon applying for bail, the magistrate should decide on merits and pass appropriate orders on the date of surrender.

Provisions of Law Cited

Section 326 read with 149 IPCSection 149 IPCSection 482 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that since co-accused have already been acquitted and crucial witnesses examined for the co-accused turned hostile, the proceedings against him should be quashed under Section 482 Cr.P.C. He asserts that the absconding co-accused cannot derive benefit from the trial’s outcomes and that the victims’ alleged composition of offences could affect withdrawal or termination of charges, which the Magistrate should consider. The petitioner also seeks an opportunity to argue the charges’ non-compoundability and to press for premature termination if appropriate, and highlights his status abroad and potential early surrender. He requests the Magistrate to consider framing of charges before 12/5/2007 and to grant bail on surrender.

Contentions of Respondents

The State, represented by the Public Prosecutor, and the Kayamkulam Sub Inspector oppose quashing. They contend that the acquittal of co-accused does not automatically benefit the petitioner, that witnesses’ hostility does not nullify the ongoing prosecution, and that the absconding accused cannot obtain relief merely due to the co-accused’s acquittal. They emphasize that the question of charge framing, non-compoundable offences, and potential compositions are matters for the Magistrate to decide on merits, and argue for dismissal of the petition.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Moosa v. Sub Inspector of Police	2006(1) KLT 552 (FB)	Positive	Full Bench clarified that mere acquittal of co-accused is not a ground to quash the proceedings against an absconding accused.
Alice George v. Deputy Superintendent of Police	2003(1)KLT 339	Mentioned Only	Cited for general directions regarding expeditious handling of bail applications; not central to the disposal.

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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 13TH APRIL 2007 / 23RD CHAITHRA 1929 Crl.MC.No. 1203 of 2007() ------------------------CC.338/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONER: - ------------------ AVINASH, S/O.THAMPAN, PADMADEVA NIVAS, KOYIPALLIKARAZHMA MURI, PERINGALA VILLAGE, OLAKETTIYAMBALAM FROM KUYILAMPARAMBIL, KOYIPALLIKARAZHMA MURI, PERINGALA VILLAGE, OLAKETTIYAMBALAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN ## RESPONDENTS-STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. SUB INSPECTOR OF POLICE, KAYAMKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/04/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.1203 of 2007 ---------------------------------------Dated this the 13[th] day of April 2007 ## **O R D E R** The petitioner faces indictment for offences punishable interalia under Section 326 read with 149 I.P.C. Altogether there were nineteen accused persons. The petitioner is the seventeenth accused. The petitioner was not available for trial. The trial against the co-accused was proceeded with. Crucial witnesses examined before court in the trial against the coaccused turned hostile to the prosecution. Consequently, the learned Magistrate found such accused not guilty and acquitted them. The petitioner did not stand trial and has shown as absconding. The case against him has been split up. The petitioner has now come to this court with this petition under Section 482 Cr.P.C to quash the proceedings which is surviving against him. 2. What is the reason? Except that the co-accused have already been acquitted and that the witnesses who were examined in the course of the trial turned hostile and did not Crl.M.C.No.1203/07 2 support the prosecution case, no other contentions are raised. The mere acquittal of the co-accused is, by itself, no reason to justify the prayer of the absconding co-accused to quash the proceedings against him. This position has been clarified in the decision of the Full Bench in Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)]. 3. I have looked into the factual situation also. One of the injured persons was not available for trial when the coaccused stood trial. May be the co-accused are entitled for the advantage of the failure of the prosecution to produce such witness. Certainly, the absconding co-accused cannot claim any benefit or advantage from that circumstance. In these circumstances, the prayer cannot obviously be entertained. The petition has to fail. 4. The learned counsel for the petitioner submits that the victims have compounded the offence. They shall report such composition to the learned Magistrate. Some of the offences alleged are non-compoundable. The petitioner wants an opportunity to be given to him to urge before the learned Magistrate that the charges are not liable to be framed for the Crl.M.C.No.1203/07 3 non-compoundable offences and that the composition of the compoundable offences deserves to be accepted in which event, the petitioner can claim premature termination of the proceedings. It is certainly for the petitioner to appear before the learned Magistrate and urge this contention at the stage of framing charge. If the learned Magistrate is satisfied that charges need not at all be framed for any non-compoundable offence, certainly the prayer for composition can also be considered by the learned Magistrate. 5. The learned counsel for the petitioner submits that the petitioner who is employed abroad has now come on leave and has to return on 12/5/2007. If the plea regarding framing of charges is considered by the learned Magistrate before 12/5/2007, that will be of great assistance to the petitioner, it is urged. I need only mention that it is for the petitioner to appear before the learned Magistrate and make that request. The learned Magistrate must certainly consider that request on merits and pass appropriate orders. 6. Finally, it is prayed that the petitioner apprehends that his application for bail may not be considered by the learned Crl.M.C.No.1203/07 4 Magistrate on the date of surrender itself. I find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs.Deputy Superintendent of Police [2003(1)KLT 339]. 7. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders 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, in accordance with law and expeditiously - on the date of surrender itself. Hand over copy of this order to the learned counsel for the petitioner. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.1203/07 5 Crl.M.C.No.1203/07 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF APRIL 2007