Santosh v. State

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2008-12-11
Court Decision / Holding: Crl.M.C. dismissed. However, the court notes that the petitioner may still seek discharge or acquittal before the Magistrate and, if he surrenders and applies for bail, the Magistrate must pass orders on merits, expeditiously, on the surrender date.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Santosh, S/O Kunhunni, Kuttampparambath Veedu, Thambankadav, Thalikulam Village

Respondents

State

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Santhosh (Poduval)
• Smt. R. Rajitha

Counsels for Respondents

• Public Prosecutor Sri Gikku Jacob

Case Synopsis & Summary

This is a criminal miscellaneous case under Section 482 Cr.P.C. filed by Santosh, the sole petitioner, seeking quashment of a continuing prosecution under Section 353 read with 149 IPC in Crime No. 154/97 of Vatanappilly Police Station. The specimen case had 13 accused persons; all but three were tried and acquitted; the case against the petitioner, who stood in the surviving prosecution, was split up and refiled. The petitioner contends that since co-accused have already been tried and acquitted, there is no reasonable likelihood that the petitioner would be found guilty, and continued proceedings would cause prejudice, harassment and unnecessary hardship, justifying exercise of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. The Respondent-State opposes the petition, arguing that as a matter of principle, following the decision of the Full Bench in Moosa v. Sub-Inspector of Police, absconding accused cannot derive benefit from acquittals of co-accused in the same prosecution, and the State bears no obligation to place incriminating materials against an absconder. The High Court rejects the prayer, holding that 482 Cr.P.C. relief cannot be invoked to prematurely terminate the case; however, it clarifies that the petitioner may pursue discharge or acquittal later before the Magistrate and, on surrender, the Magistrate should decide bail on merits expeditiously. The order ends with directions regarding surrender and bail. The petition is dismissed in terms of the ruling.

Provisions of Law Cited

Section 353 read with 149 IPCSection 482 Cr.P.C.

Legal Doctrines & Maxims

Inherent jurisdiction of High Court under Section 482 Cr.P.C. to quash a prosecution
Absconding accused cannot derive benefit from acquittal of co-accused (Moosa v. Sub-Inspector of Police, 2006(1) KLT 552)
General directions for bail as per Alice George v. Deputy Superintendent of Police, 2003(1) KLT 339

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that since co-accused have been tried and acquitted, there is no likelihood of conviction against him and continuing prosecution causes prejudice and harassment; he seeks quashing under 482 Cr.P.C. for premature termination of the case.

Contentions of Respondents

The State relies on the Full Bench decision in Moosa v. Sub-Inspector of Police (2006(1) KLT 552) to contend that an absconding accused cannot derive any benefit from the acquittal of co-accused and that the prosecution need not place incriminating materials against an absconder; the petition is not maintainable.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Moosa v. Sub Inspector of Police	2006(1) KLT 552	Positive	Cited to support that absconding accused cannot derive advantage from acquittal of co-accused; the court applies this proposition.
Alice George v. Deputy Superintendent of Police	2003(1) KLT 339	Mentioned Only	Referenced for general directions; not applied as controlling ratio.

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 THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 4796 of 2008() ------------------------CC.1351/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD CRIME NO.154/97 OF VATANAPPILLY POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- SANTHOSH, S/O.KUNHUNNI, KUTTAMPARAMBATH VEEDU, THAMBANKADAVU, THALIKULAM VILLAGE. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY SUB' INSPECTOR OF POLICE, VATANAPPILLY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.4796 of 2008 ---------------------------------------Dated this the 11[th] day of December 2008 ## **O R D E R** The petitioner faces indictment in a prosecution for offences punishable inter alia under Section 353 read with 149 I.P.C. Altogether there were 13 accused persons. All other accused persons except three have already been tried, found not guilty and acquitted. The case against the remaining three including the petitioner herein has been split up and refiled. The co-accused have been acquitted as per two separate judgments Annexures B and C. The petitioner faces indictment in the surviving prosecution. The petitioner has now come to this court with the prayer that the prosecution against him may be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 2. What is the reason? The learned counsel for the petitioner submits that inasmuch as the co-accused have already been tried, found not guilty and acquitted, there is no semblance of a possibility that the petitioner would be found guilty, convicted and sentenced. In these circumstances, the unnecessary continuance of the prosecution works out great prejudice, hardship and endless harassment against the Crl.M.C.No.4796/08 2 petitioner. Extraordinary inherent jurisdiction may be invoked to bring to premature termination such unnecessary and irrelevant prosecution, submits the learned counsel for the petitioner. 3. The application is opposed. After the decision of the Full Bench in **Moosa vs. Sub Inspector of Police [2006(1) KLT 552]** it is trite that an absconding accused cannot take advantage of the judgment of acquittal in favour of a co-accused who faced trial. Such co-accused were acquitted on the basis of the materials placed before the court in such cases. In such prosecution, the State has no obligation to specifically place the incriminating materials against the absconding accused before the court. In these circumstances, the petitioner's claim for any benefit or advantage on the basis of the acquittal of the coaccused in such prosecution against the co-accused cannot obviously succeed. The petitioner cannot succeed in this Crl.M.C. 4. In the result, this Crl.M.C is dismissed but I may hasten to observe that the the dismissal of this Crl.M.C will not fetter the rights of the petitioner to stake his claim for discharge Crl.M.C.No.4796/08 3 before the learned Magistrate or if he is not successful, to claim acquittal at later stages. 5. The learned counsel for the petitioner submits that coercive processes issued by the learned Magistrate are chasing the petitioner. The petitioner apprehends imminent arrest in execution of such processes. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 6. 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 Crl.M.C.No.4796/08 4 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 petition 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.4796/08 5 Crl.M.C.No.4796/08 6 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008