Shabu Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** **Crl.MC.No. 1928 of 2019** **SC 1305/2018 of I ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM CRIME NO. 271/1997 OF Peroorkada Police Station, Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SHABU THOMAS, AGED 50 YEARS, S/O. THOMAS, T.C. 10/921, MANNAMOOLA, VIVEKANANDAPURAM, KANJIRAMPARA WARD, HAILING FROM ARACKAL HOUSE, NEAR PUSHPAGIRI HOSPITAL, THIRUVALLA, PATHANAMTHITTA.** **BY ADVS. SRI.GOKUL DAS V.V.H. SRI.K.V.SREE VINAYAKAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **SRI. C. K. SURESH, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1928 of 2019** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in S.C.No.1305 of 2018 on the file of the Additional Sessions Court-I, Thiruvananthapuram. The aforesaid case has arisen from Crime No.271 of 1997 of the Peroorkada Police Station registered for offences punishable under Sections 120B, 143, 147, 148, 342 and 302 r/w Section 149 of the IPC. 3. The essential facts that are to be narrated for the disposal of the petition is that on 29.12.1997 at about 8.45 a.m, the accused Nos. 1 to 11 in the said crime formed themselves into an unlawful assembly and in prosecution of their common object to murder one Nazeer, wrongfully confined him and the petitioner, who was arrayed as the 6[th] accused, is alleged to have pushed Nazeer to the ground. Thereafter, the rest of the accused pounced on him and hacked him with weapons causing fatal injuries resulting in his death. 4. The investigation was completed and final report was laid before the jurisdictional Magistrate. The case was later committed to the Court of Session. 5. The petitioner absconded and hence, the trial was **Crl.MC.No. 1928 of 2019** **3** proceeded against the rest of the accused. By Annexure-AII judgment dated 31.03.2005, the rest of the accused were found guilty and they were acquitted of all charges. 6. The petitioner has now approached this Court seeking to quash the entire proceedings on the ground that the continuance of the criminal proceedings would be nothing, but an abuse or process. 7. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 8. It is submitted by the learned counsel that the case against the rest of the accused having ended in an acquittal, the proceeding against the petitioner is an empty formality. He would refer to the decision of this Court in **Moosa v. Sub Inspector of Police** [2006 (1) KLT 552] and it is argued that if the very substratum of the case is destroyed, this Court will be well justified in quashing the proceedings. 9. The learned Senior Public Prosecutor has strenuously opposed the prayer. He would also rely on the principles laid down in **Moosa** (supra) and it is argued that the acquittal of some of the coaccused based on appreciation of evidence in their case is no ground to bar a criminal trial as the appreciation by the concerned Judge in a criminal trial is not binding when the latter case is tried in the case of **Crl.MC.No. 1928 of 2019** **4** the other co-accused and it is for the learned trial Judge to appreciate the evidence adduced in the latter case. 10. I have anxiously considered the submissions very vehemently advanced by both sides. 11. In **Moosa** (supra), a three Judge Bench of this Court, in paragraphs 52 and 53 of the said decision, has held as follows: “52. To quash the proceeding after referring to the overt act of the petitioner with reference to the evidence tendered in the judgment rendered in a case of a co-accused who faced the trial and based on evidence therein case of the accused cannot be done as the judgment in the earlier case is not judgment relevant within the meaning of Sections 40 to 44 of the Evidence Act. To do so will be in the realm of appreciation of the evidence which has to be done by the trial judge. In the above view, with great respect we cannot agree with the proposition of law thus stated in _Arun Kumar's_ Case. The acquittal of some of the co-accused based on appreciation of evidence in their case is no ground to bar a criminal trial as the appreciation by the concerned judge in a criminal trial is not binding when the latter case is tried in the case of the other co-accused and it is for the learned trial Judge to appreciate the evidence adduced in the latter case. In that regard, possibly a particular witness may or may not be believed and his reliability may also be tested in the light of what he has stated in the earlier case etc. But those are all matters for the trial Judge to do. All that we want to say is that it will not preclude the trial of the case for the mere reason that the co-accused were acquitted. This is the principle that is stated by the Apex Court in _Mega Singh v. State of Punjab_ (2004 SCC Crl. 58), _Gorle S. Naidu v. State of A.P._ (AIR 2004 SC 1169) etc. Further, as held by the apex court in _Raju Rai's Case_ (2006(1)KLT (SC)(SN) 8 = 2005 (7) Supreme 459) the judgment in the case of the co-accused is **Crl.MC.No. 1928 of 2019** **5** not at all a judgment relevant within the meaning of Ss.40 to 44 of the Evidence Act. The Rule of estoppel as held by the Apex Court is a rule of admissibility of evidence and which does not bar the trial as such. Hence, it has to be held that the power under S.482 Cr.P.C. cannot be invoked to prevent the trial of the petitioners/accused solely by referring to the overt act played by the accused as spoken to by the witnesses in the case of the coaccused and this Court cannot in exercise of its jurisdiction under S.482 Cr.P.C. quash the proceedings and prevent the trial. Hence the dictum laid down in _Arun Kumar's_ case to the extent it has taken a contrary view of what is stated above, is not a correct law and the same is overruled. 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. (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 **Crl.MC.No. 1928 of 2019** **6** 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 coaccused'. In such trial the prosecution cannot be held to have the opportunity or obligation to adduce all evidence against the absconding coaccused. 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 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 **Crl.MC.No. 1928 of 2019** **7** 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 subject of course to the general principles narrated above.” 12. The petitioner is a fugitive from justice. The mere 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 **Crl.MC.No. 1928 of 2019** **8** relevant circumstance while considering invocation of the powers under Section 482 of the Code of Criminal Procedure. Being a case of murder and since a specific role has been attributed to the petitioner, the acquittal of some of the co-accused based on appreciation of evidence in their case is no ground to bar a criminal trial. The appreciation of evidence by the former Judge in a criminal trial is not binding when the latter case is tried in the case of the other coaccused and it is for the learned trial Judge to appreciate the evidence adduced in the latter case. 13. On the anvil of the law laid down by this Court in **Moosa** (supra), I am of the considered view that this is not a fit case, wherein this Court will be justified in quashing the proceedings by invoking the extraordinary inherent powers under Section 482 of the Code. This petition will stand dismissed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/29.5.19 //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 1928 of 2019** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 271/1997 BEFORE THE PEROORKADA POLICE STATION.** **ANNEXURE II THE CERTIFIED COPY OF THE JUDGMENT DATED 31.3.2005 IN S.C. 582/2003 BEFORE THE ADDITIONAL SESSIONS COURT FAST TRACK COURT 1, THIRUVANANTHAPURAM.** **ANNEXURE III TRUE COPY OF THE DISCHARGE SUMMARY DATED 8.3.2019 ISSUED FROM BELIEVER CHURCH MEDICAL COLLEGE HOSPITAL, THIRUVALLA.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**