Sindhu Jibi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** **Crl.MC.No. 1487 of 2019** **CC NO.1385/2018 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, HARIPAD CRIME NO.395/2014 OF THRIKKUNNAPPUZHA POLICE STATION, ALAPPUZHA** ## **PETITIONER/2ND ACCUSED:** **SINDHU JIBI, AGED 39 YEARS, S/O NARAYANAN, KARITHRAYILPALLI, PATTURUMMI, THRIKUNNAPUZHA, ALAPPUZHA-690515** **BY ADV. SRI.A.RAJASIMHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SRI. RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:1487/2019 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure (“the Code” for brevity). 2. The petitioner herein is the 2[nd] accused in C.C. No.1385 of 2018 pending on the files of the Judicial First Class Magistrate Court-I, Haripad. The aforesaid case has arisen from Crime No.395 of 2014 of the Thrikunnapuzha Police Station under Sections 406, 420 r/w. Section 34 of the IPC, Sections 4 and 5 r/w. 76 of the Chit Funds Act, 1982, Section 17 of the Kerala Money Lenders Act, 1952 and Section 4 of the Prohibition of Exorbitant Interest Act, 2017. 3. The petitioner was not available for trial and the case was proceeded with as against the 1[st] accused. The learned Magistrate by Annexure-A2 judgment dated 06.12.2018, found the 1[st] accused not guilty of the offences and he was acquitted of all charges. It is on the basis of acquittal of the co-accused that this petition is filed seeking to quash the proceedings on the ground that the substratum of the case as against the petitioner has been shattered. 4. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. CRL.MC:1487/2019 3 5. Primarily, the question is whether the proceedings are liable to be quashed on the ground of acquittal of some of the co-accused. 6. 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. CRL.MC:1487/2019 4 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 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 CRL.MC:1487/2019 5 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 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 CRL.MC:1487/2019 6 extraordinary inherent jurisdiction is warranted to bring about premature termination of proceedings subject of course to the general principles narrated above.” 7. 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. 8. 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 coaccused 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. 9. However, the petitioner can be directed to co-operate with the trial proceedings, for which necessary directions can be issued. If the petitioner surrenders before the court below within two weeks from today and files an application for regular bail, the same shall be CRL.MC:1487/2019 7 considered and orders shall be passed on the same day itself after granting an opportunity of hearing to the petitioner. Coercive proceedings, if any, against the petitioner shall be kept in abeyance till then. This petition is disposed of accordingly. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ //TRUE COPY// P.A. TO JUDGE CRL.MC:1487/2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.395/2014 OF THRIKUNNAPUZHA POLICE STATION.** **ANNEXURE A2 TRUE COPY OF THE JUDGMENT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, HARIPARD IN CC NO.1271/14 DATED 6-12-2018** ## **RESPONDENT/S EXHIBITS:-NIL**