ASHIQUE MUSTHAFA Vs. S I OF POLICE

JUDGEMENT

(1.) The petitioner is one of the accused against whom final report was filed after investigation, inter alia, under Sections 341, 323 read with Section 141 I.P.C. The petitioner, ie. the 3rd accused, was not available for trial. The co-accused were proceeded against. They were found not guilty and acquitted as per judgment, a copy of which is produced as Annexure-2.

(2.) The learned counsel for the petitioner submits that inasmuch as the co-accused have already been found not guilty and acquitted and inasmuch as the petitioner alone remains to be tried, the charge under Sections 143 & 147 does not arise and the petitioner cannot be mulcted with liability with the aid of Section 149 I.P.C. The learned counsel for the petitioner further submits that there is no specific overt act alleged against the petitioner and that, at any rate, the offences punishable under Sections 341 & 323 I.P.C have been compounded. The petitioner submits that if some further time were granted to the petitioner, the petitioner shall be in a position to report composition before the learned Magistrate.

(3.) The dictum in Moosa v. Sub Inspector of Police (F.B) [2006(1) KLT 552] makes it clear that the mere fact that the co-accused have been acquitted, is no reason to quash the proceedings against the absconding accused. I have been taken through Annexure-2 judgment. I note that all the eye witnesses were not even examined in that case. It would be puerile for this court from the nature of the evidence that was adduced in Annexure-2 to jump to the conclusion that there is no evidence adduced against the petitioner even if appears and stands trial. Suffice it to say that the acquittal of the co-accused on the basis of the facts and circumstances revealed in the trial which was held cannot at all entitle the petitioner to the relief of quashing the proceedings against him. The petitioner's contention that the matter has been compounded between the parties must certainly be raised before court which the case is pending. That court can certainly be requested not to frame charges for the offences punishable under Sections 143 & 147 I.P.C. If such a contention is available from the records produced before court, needless to say, if there is composition, that can also be reported to the learned Magistrate, who must pass appropriate orders on such application for composition.