Sainul Abid @ Sainudheen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** **Crl.MC.No. 1828 of 2019** **CC NO.138/2019 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM** **CRIME NO. 137/1998 OF CHERPULASSERY POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** **SAINUL ABID@SAINUDHEEN, AGED 29 YEARS, MANAPPADAN VEED, KIZHUR ROAD, THRIKKITEERI, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.P.JAYARAM SRI.SARATH CHANDRAN K.B.** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **SRI. AJITH MURLI PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 1828 of 2019 2 ## **ORDER** The petitioner has approached this Court with a prayer to invoke the powers under Section 482 of the Code of Criminal Procedure to quash the pending criminal proceedings against him. 2. According to the petitioner, he was arrayed as the 2[nd] accused in C.C.No.523 of 1998. The 1[st] accused expired in the course of trial and the case against the said accused stood abated. In the midst of the trial, after examination of PWs 1 to 7 was over, the petitioner went abroad in search of employment and hence, the trial was proceeded with against accused Nos. 3 and 4. They were found not guilty and were acquitted of all charges by Annexure-A1 judgment. The trial Court came to the conclusion that there were gross discrepancies in the evidence tendered by the eye witnesses. The injuries sustained by accused were also not explained. As the prosecution had failed to bring home the guilt against the co-accused, it would only be futile to insist that the petitioner should undergo the ordeal of a trial, contends the learned counsel. 3. Alternatively, he would contend that after the acquittal of the co-accused, he had surrendered before the Court below and the Crl.MC.No. 1828 of 2019 3 case against him was taken on file as C.C.No.157 of 2007. A counter case was registered against the de facto complainant and others which was also pending before the learned Magistrate. The said case was also being simultaneously tried. According to the learned counsel, after the petitioner had appeared in C.C.No.157 of 2007, two more witnesses were examined and the prosecution evidence was closed. After questioning the petitioner under Section 313 of the Code, a witness was examined on the side of the defence. Thereafter the petitioner again absconded and the trial had to be stopped midway. The accused in the Counter case was acquitted of all charges on 13.06.2016. The case against the petitioner was again removed to the list of long pending cases. Later the petitioner surrendered before the learned Magistrate and he was released on bail. The case was renumbered as C.C.No.138 of 2019 and is still pending. He prays that the petitioner has not been heard by the learned Magistrate and seeks for issuance of necessary directions to the court below to grant him an opportunity of hearing before pronouncing the judgment. 4. Primarily, the question is whether the proceedings are liable to be quashed on the ground of acquittal of some of the co-accused. Crl.MC.No. 1828 of 2019 4 5. In **Moosa v. Sub Inspector of Police** [2006 (1) KLJ 349], a three Judge Bench of this Court had occasion to lucidly explain the principles to be borne in mind when an absconding accused seeks to invoke the powers under Section 482 of the Code to prematurely terminate the case against him on the strength of acquittal of a coaccused. It was held that the fact that co-accused have secured acquittal after trial cannot by itself be reckoned as a relevant circumstance for invocation of powers under Section 482 of the Cr.P.C., to quash the proceedings as against the accused, who has not faced the trial. In paragraph 53 of the judgment, their Lordships had summarized the conclusions in the following manner: “53. In the light of the above discussions, we may summarise the legal position as follows: (i) The inherent powers of the High Court reserved and recognised under Section 482 of the Code of Criminal Procedure are sweeping and awesome; but such powers can be invoked only (a) to give effect to any order passed under the Code of Criminal Procedure or (b) to prevent abuse of process of any court or - (c) otherwise to secure the ends of justice. Such powers may have to be exercised in an appropriate case to render justice even beyond the law. Crl.MC.No. 1828 of 2019 5 (ii) Considering the nature, width and amplitude of the powers, it would be unnecessary, inexpedient and imprudent to prescribe or stipulate any straight jacket formula to identify cases where such powers can or need not be invoked. (iii) But such powers can be invoked only in exceptional and rare cases and cannot be invoked as a matter of course. Where the Code provides methods and procedures to deal with the given situation, in the absence of exceptional and compelling reasons, invocation of the powers under Section 482 of the Code of Criminal Procedure is not necessary or permissible. (iv) The fact that an accused can seek discharge/dropping of proceedings/acquittal under the relevant provisions of the Code in the normal course would certainly be a justifiable reason, in the absence of exceptional and compelling reasons, for the High Court not invoking its extraordinary powers under Section 482 Cr.P.C. (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 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. (vi) On the basis of materials placed before the High Court in proceedings under Section 482 of the Code of Criminal Procedure (which materials can be placed before the court in appropriate proceedings before the subordinate courts) such extraordinary inherent powers under Section 482 of the Code of Criminal Procedure cannot normally be invoked, unless such materials are of an unimpeachable nature which can be translated into legal evidence Crl.MC.No. 1828 of 2019 6 ## in the course of trial. (vii) The judgment of acquittal of a co-accused in a criminal trial is not admissible under Sections 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 Section 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 Section 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 Section 482 of the Code of Criminal Procedure. (x) A judgment not inter parties cannot justify the invocation of the doctrine of issue estoppel under the Indian law at present. (xi) Conscious of the above general principles, the High Court has to consider in each case whether the powers under Section 482 of the Code of Criminal Procedure deserve to be invoked. Judicial wisdom, sagacity, sobriety and circumspection have to be pressed into service to identify that rare and exceptional case where invocation of the extraordinary inherent jurisdiction is warranted to bring about premature termination of proceedings Crl.MC.No. 1828 of 2019 7 subject of course to the general principles narrated above.” 6. Clauses (vii) to (x) lay down clearly that 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 Section 482 of the Code of Criminal Procedure. 7. The petitioner herein had absconded twice after appearing before the court below and the trial was delayed for over a decade. The contention of the petitioner that the entire substratum of the prosecution case has been destroyed cannot be sustained. Clause (v) of paragraph 53 clearly states that 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. For the aforementioned reasons, I am not inclined to exercise the extraordinary powers vested on this Court to quash the criminal proceedings pending against the petitioner. 8. At this stage, the learned counsel appearing for the petitioner prays that necessary directions be issued to the court below Crl.MC.No. 1828 of 2019 8 to grant an opportunity of hearing to the petitioner before passing the order. If the petitioner has not been heard till date, he shall be granted an opportunity to advance his contentions. This petition will stand dismissed, however, with the above direction. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** IAP Crl.MC.No. 1828 of 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **COPY OF THE JUDGMENT DATED 12.3.2007 IN CC NO 523/1998 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM** ## **RESPONDENTS' EXHIBITS:** NIL **//TRUE COPY// P.A TO JUDGE**