MOOSA V SUB INSPECTOR OF POLICE ON 23 DECEMBER, 2005
| Citation | 2006 CrilJ1922, 2006 (1) KLT 552 |
| Date of Judgment | 23 december2005 |
| Court | High of Kerala |
| Case Type | Criminal Appeal No.91 of 2002 |
| Appellant | Moosa |
| Respondent | Sub Inspector of Police |
| Bench | P Raman, R Basant, M Krishnan |
| Referred | Section-227,482 of crpc |
FACTS OF THE CASE
The above Criminal Miscellaneous Case is filed under Section 432 of the Code of Criminal Procedure seeking to quash the criminal proceedings initiated against the petitioners herein on the ground that the co-accused in the respective cases were acquitted on trial. The case of the petitioners who were absconders were separated and are now proceeded with in their respective cases. The co-accused against whom case was proceeded with earlier were finally acquitted on appreciation of the evidence in each of the cases above. It was contended that as the prosecution failed to prove the guilt of any of them, no useful purpose will be served by conducting trial against them and it will be an abuse of process of the court and to secure the ends of justice further proceedings against the petitioners is to be quashed. In support thereof reliance was placed on the decision of a Division Bench of this Court in Arun Kumar v. State of Kerala . Crl. M.C. Nos. 1053, 1067 & 1078/2005 came up for consideration before a Learned Judge of this Court who after referring to the decisions in Joy v. State of Kerala 2002 (3) KLT 425, Chellappan v. State of Kerala 1992(1) KLT 609, Balakrishna Pillai v. State of Kerala 1971 KLT SN.3, Felix v. State and Ors. 1980 KLT 612 and also Arun Kumar’s case cited supra, was of the view that there is apparent conflict in the Division Bench and Single Bench rulings of this Court and the matter required to be referred to a Full Bench In the reference order, Ramkumar, J. also expressed his feeling that granting relief to an absconder accused may give a wrong message to a law abiding co-accused who stood trial that it was foolish on his part to attend the process of trial and its result will be that like-minded accused persons also will be tempted to adopt elucive tatics for the eventual resort to such short-cut method. Subsequently, Crl. M.C. Nos. 3102,3300, 3460 and other connected matters which came up for consideration before a Division Bench of this Court also were referred to the Full Bench.
ISSUES
1. Whether the Rule of Estoppel is a Rule of Evidence ?
ARGUMENTS
It was contended on behalf of the petitioners that Arun Kumar’s case has correctly decided the principles stated therein. It was their further contention that Section 482 Cr.P.C. is a wholesome provision, which is intended to prevent abuse of process of the court and to secure the ends of justice. Therefore the power is very wide and no fetter can be placed on the inherent powers of this Court by laying down a straight jacket formula for the exercise of such power. For what purpose the power could be exercised is expressly provided in Section 482 of the Code. Hence in a given case whether there is any abuse of process of the court or not is always a matter of appreciation of the particular matrix present in each of the cases by the court. They contended that they are not canvassing for the position that merely because a few witnesses turned hostile in a trial, the other accused who has not faced the trial is entitled to be acquitted on that ground. But according to the learned Counsel, if the substratum of the case is shown to be lost based on the earlier judgment though the petitioner may not be a party thereto, the offence alleged being same, he is entitled to rely on the earlier judgment to that extent. If the substratum of the allegation does not survive, necessarily it will only result in abuse of process to try again the same issue in the case of the petitioner. It was also contended that the principle of issue estoppel is synonym with the term “abuse of process”, that the issue estoppel equally applies to criminal trial and can be extended to situation or facts already tried and decided earlier and the judgment though not interparties is still relevant and admissible.
The learned Director General of Prosecution Sri. Madhavan Nambiar, on the other hand contended that the judgment in the case of a co-accused is not judgment relevant within the meaning of Sections 41 to 43 of the Evidence Act and the fact that certain accused were acquitted by itself is no bar for a trial in the case of the petitioners. He also contended that any document, unless it could be translated into the form of legal unimpeachable evidence, cannot be looked into to quash further proceeding which will be in effect barring the very trial. He also canvassed for the position that merely because a few witnesses turned hostile or the trial judge while on appreciation of the evidence acquitted some of them is also not reason to stop the trial of the accused as it is for the court trying the present case to assess the evidence on record and then come to its own conclusion.
JUDGEMENT
The bench summarised 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 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 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 interparties 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.
REFERENCES
This Article is written by Chandrawati Chouhan of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.
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