Devandan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 Crl.MC.No. 1958 of 2008() ------------------------CP.164/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... PETITIONER: 2ND ACCUSED ----------------------- DEVANANDAN, S/O.DIVAKARAN, MUDIYILAZHIKAM VEEDU, THEKKEVILA CHERRY, MUNDAKKAL VILLAGE, KOLLAM. BY ADV. SRI.C.K.PRASAD SRI.ABHILASH S.FRANCIS ## RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLAM EAST, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.1958 of 2008 ---------------------------------------Dated this the 21[st] day of May 2008 ## **O R D E R** The petitioner faces indictment in a prosecution for offences punishable under Sections 55(a) and (i) of the Kerala Abkari Act. Altogether there are two accused persons. The petitioner is the second accused. The first accused has already stood trial. He has been found not guilty and acquitted as per judgment dated 23/11/2005 in S.C.No.1006/01. 2. The petitioner was not available for committal and the case against him has been split up and the same is pending as C.P.No.164/1998 before the learned Judicial First Class Magistrate Court-II, Kollam, it is submitted. According to the petitioner, he has secured employment abroad and hence was unable to appear before the learned Magistrate and take part in the prosecution. Coercive processes have hence been issued against the petitioner by the learned Magistrate. 3. The petitioner apprehends imminent arrest. The petitioner further submits that he is entitled to have the proceedings against him quashed invoking the powers under Section 482 Cr.P.C inasmuch as the prosecution against the coaccused has ended in acquittal. The first and the second accused Crl.M.C.No.1958/08 2 faced identical allegations and in the absence of any proof as against the first accused, it has to be assumed, presumed and inferred that continuance of the prosecution against the petitioner will be of no avail whatsoever. The learned counsel for the petitioner relies on the findings entered in Annexure A7 judgment rendered by the Sessions Court in the trial against the first accused who was available before court. 4. It is by now trite that acquittal of a co-accused is by itself no ground for an absconding accused to claim quashing of proceedings under Section 482 Cr.P.C. The decision in Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)] settles the position finally. I have been taken through Annexure A7 judgment and the findings therein. It is seen that the coaccused, that is the first accused, who stood trial was found to be not guilty and acquitted on the finding of the learned Sessions Judge that such accused is entitled to the benefit of doubt. The complicity of the petitioner did not arise for consideration at all in the said proceedings. The prosecution was not called upon to and did not have the opportunity to specifically and pointedly adduce evidence against the petitioner in such earlier proceedings. In these circumstances, I am of the opinion that it is not expedient or in the interests of justice to mechanically Crl.M.C.No.1958/08 3 invoke the powers under Section 482 Cr.P.C in favour of the petitioner and to quash the proceedings against him merely because the first accused was found entitled to the benefit of doubt in the prosecution which was held against him. 5. The petitioner, I am satisfied, must appear before the learned Magistrate and take part in the proceedings against him. If he is so entitled to, he must like the co-accused claim acquittal (or discharge) in such trial to be held. In any view of the matter, I do not find any circumstances justifying or warranting the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C in favour of the petitioner. 6. This petition is accordingly dismissed. The learned counsel for the petitioner finally submits that there may be a direction to the learned Magistrate to consider the petitioner's application for bail when he surrenders before the learned Magistrate. 7. In Bharat Chaudhary v. State of Bihar [AIR 2003 SC 4662] it is well settled that powers under Section 438 Cr.P.C can be invoked even in favour of the accused who apprehends arrest in execution of a non bailable warrant issued in a pending proceedings. But even for that, sufficient and satisfactory reasons must be shown to exist to justify the invocation of the Crl.M.C.No.1958/08 4 extraordinary equitable discretion under Section 438 Cr.P.C. I do not find any such reasons in this case. 8. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate, the circumstances under which he could not earlier appear before the learned Magistrate. 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]. 9. 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. ## **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge Crl.M.C.No.1958/08 5 Crl.M.C.No.1958/08 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007