ARUNKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) A learned judge of this Court has referred these petitions for consideration by a Division Bench. The question referred is as follows: If, in a criminal case, there are more than one accused and if only a few of them faces trial, the other being absconding, and in case the trial ends in acquittal of the accused, can the absconding accused invoke the jurisdiction under S. 482 Cr. P. C. to quash the charges against them.

(2.) AT the outset, we will make it clear that no straight jacket formula can be applied in such a situation. It will depend upon the relevance of the witnesses examined; the overt act complained of; what the witnesses, who had not been examined during the trial of the acquitted accused, would have to say going by the case records, if examined during the trial of the absconding accused; and several other relevant factors. Therefore, each of the cases will have to be examined based on its own facts and circumstances.

(3.) ON reading the decision reported in Joy v. State of Kerala (2002 (3) KLT 425) it can easily be seen that the conclusion arrived at there was based on the peculiar fact frame of that case and the principle contained therein is not of universal application. Equally so is the dictum contained in the decision reported in Shafi v. State of Kerala (2003 (2) KLT 920 ). There also, the fact situation demanded a different conclusion. Thus, it is clear that the learned judges in the respective cases were examining the fact situation of that case. Therefore, it is upto the judge who hears the petition under S. 482 Cr. P. C. , to examine the fact situation of each case, with reference to the overt acts attributed and such other relevant factors and to come to a conclusion whether the discretion vested in this Court under S. 482 Cr. P. C. has to be exercised or not. It is also possible to consider whether the accused, who had not faced trial, can seek the remedy available under S. 239 Cr. P. C. for an order of discharge.