ABDUL NASAR Vs. STATION HOUSE OFFICER

JUDGEMENT

(1.) The petitioner is the first accused in a prosecution under Sections 341 and 323 read with 34 I.P.C. The co-accused has already faced trial and has been found not guilty and acquitted. No witnesses supported the prosecution in that case. The complainant was not available to be examined also. The case against the petitioner has been split up since he was not available for trial. He finds himself in an unenviable predicament as the warrant of arrest issued by the learned Magistrate is chasing him. The petitioner is willing to surrender before the learned Magistrate. The petitioner submits that no useful purpose would be served by continuation of the proceedings against him. The co-accused have already been tried and acquitted. In these circumstances, it is prayed that powers under Section 482 Cr.P.C may be invoked to bring to premature termination the split up prosecution against the petitioner.

(2.) In Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)] the Full Bench has considered the question whether an absconding co-accused is entitled for any benefit or advantage from the acquittal of the co-accused in a separate trial held against him. The question has been clearly answered against the petitioner in that case. That the witnesses have turned hostile to the prosecution when the co-accused faced trial is certainly not a valid reason to justify invocation of powers under Section 482 Cr.P.C. Moreover, in the facts of the instant case, it must be noted that the complainant admittedly was not available to be examined for such trial against the co-accused, the inability of the prosecution to secure the presence of the complainant in the trial which was held earlier may deliver an advantage to the accused who faced trial but certainly that cannot deliver any advantage to the absconding co-accused. It would be presumptuous on the part of the court to assume that the complainant/injured will not be available to tender evidence even in the trial against the petitioner. Iin these circumstances, the extraordinary inherent powers cannot be invoked in favour of the petitioner.

(3.) The learned counsel for the petitioner submits that the offences are compoundable and bailable. The petitioner's inability to appear earlier was on account of reasons beyond his control. He apprehends that the learned Magistrate may not consider his application for bail on merits, in accordance with law and expeditiously. Therefore, appropriate directions may be issued, it is submitted.