K.A. Abdul Gafoor, J.

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. There may be a case where, during the trial of the accused, who appeared before the Court, the Court may find that the incident alleged by the prosecution may not have happened in the manner as stated by the prosecution, or there had been vitiating factors with reference to the First Information Report as regards its embellishment or inordinate delay, etc. In such circumstances, perhaps, those aspects can be made applicable to all the accused, irrespective of whether they faced trial or not. But, at the same time, when collective overt act is spoken to by a few of the witnesses and the witnesses examined could not identify the accused, and therefore, they were declared hostile, it cannot be contended that they or other witnesses, who were not examined, but can be examined when absconding accused faces trial, would not identify the absconding accused. Therefore, in such a situation, merely because of a few of the witnesses were declared to have turned hostile to the prosecution on the ground that they could not identify the tried accused, it cannot be stated that the evidence of those witnesses shall be applied to the case of the remaining accused persons as well, to quash the charges against them.'

4. There may be another situation of each of the several witnesses speaking about separate i independent overt acts of each of the accused persons. In such circumstances, when a few of the accused faced trial, while the others absconded, the Public Prosecutor cannot examine those witnesses, who may speak about the overt acts committed by the absconding accused. When the absconding accused is brought to trial, it will be possible for the prosecutor to examine such witnesses to bring the guilt home on them. In such circumstances, merely because the witnesses examined, who were to speak about the incriminating circumstances against the accused, who faced trial, had become hostile, the absconding accused cannot contend that the evidence of those witnesses shall be applied to their case as well to quash the charges against them. Circumstances and eventualities, to be examined, are manifold.

5. 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