Biju Panicker & Vikraman Nair v. State of Kerala and Commissioner of Police

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939** ## **Crl.MC.No. 5636 of 2017** ## **---------------------------------------** ## **C.C.NO. 3826/2016 OF THE ADDITIONAL CIVIL COURT AND JUDICIAL MAGISTRATE OF FIRST CLASS, MORBI, GUJARAT** ## **-------------------** ## **PETITIONER(S)/ACCUSED :** **-----------------------------------------** **1. BIJU PANICKER, PARTNER, M/S.FASTO CERAMICS, 12PHB, HEERA TWINS, PATTOM, THIRUVANANTHAPURAM.** **2. VIKRAMAN NAIR, PARTNER, M/S.FASTO CERAMICS, TC V/1218, SAKTHI NILAYAM, PRASANTH NAGAR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** ## **BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL** ## **RESPONDENT(S)/COMPLAINANT :** **---------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. COMMISSIONER OF POLICE, POLICE COMMISSIONARATE, THYCAD, THIRUVANANTHAPURAM- 680 001.** ## **BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** **Crl.MC.No. 5636 of 2017** ## **------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES :** **ANNEXURE 1 COPY OF THE COMPLAINT U/S 138.** **ANNEXURE 2 COPY OF THE CHEQUE ISSUED BY 1ST PETITIONER. ANNEXURE 3 COPY OF THE CERTIFICATE ISSUED BY SUT HOSPITAL PATTOM.** **RESPONDENT(S)' ANNEXURES :** **ANNEXURE A1(I): A TRUE COPY OF THE SUMMONS.** **//TRUE COPY//** **P.S.TO JUDGE** Msd. ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 5636 of 2017 ================== Dated this the 23[rd] day of August, 2017 O R D E R The prayers in this Crl.M.C are as follows: - “(i) To direct the second respondent to grant bail of the petitioners in case they are arrested on executing sufficient security.” - (ii) Pass such other orders that may deem fit and proper by this Hon'ble court.” 2. The Registry has noted that in the instant case, cognizance of the offence in Anx.A-1 complaint has been taken by the trial court based at Morbi in the State of Gujarat and therefore this Court may not have territorial jurisdiction in view of the legal principles laid down by the Full Bench of this Court in the judgment in Meenakshi Sathish v. Southern Petrochemical Industries reported in 2007 (1) KLT 890 (FB). In the said decision, the Full Bench of this Court has held that where cognizance is taken on the offence in a complaint instituted before a court situated outside the territorial limits of Kerala, then the issue of taking its legality and correctness of the decision of the said trial court in taking cognizance in such case cannot be challenged by filing a petition under Sec.482 of the Cr.P.C or under Article 227 of the Constitution of India before this Court due to lack of territorial jurisdiction, etc. However, Sri.R.Sunil Kumar, learned counsel appearing for the petitioners would submit that petitioners are not in any manner even remotely challenging Crl.M.C.5636/17 - : 2 :- the legality and correctness of the decision taken by the learned Magistrate at Gujarat in taking cognizance of the offence in Anx.A-1 complaint and would only urge that the competent authorities to execute non bailable warrant issued by the said Magistrate are now based in the State of Kerala and that the authorities enumerated in Sec.81 of the Cr.P.C have been conferred with the power to grant bail in bailable offences and further that since those authorities are situated within the territorial limits of State of Kerala, this Court has territorial jurisdiction to direct those authorities to act in accordance with Sec.81 of the Cr.P.C and other related provisions in the Code. This Court has passed interim order dated 11.8.2017 which reads as follows: “The limited plea made by the petitioner is that the non-bailable warrant issued by the learned Magistrate situated at Ahmedabad, Gujarat State has been sought to be executed through the second respondent Commissioner of Police, Trivandrum City and therefore, the plea made for bail under Section 81 of the Cr.P.C is maintainable before this Court in as much as the authorities concerned mentioned in that section who are conferred the power to grant bail are all functionaries of State of Kerala and therefore primafacie it appears that there is territorial jurisdiction for this Court to entertain the limited plea as mentioned above. 2. Registry to number the Crl.M.C and list the same for admission on 16.8.2017. In the meanwhile the learned Prosecutor will get instructions from the second respondent Commissioner of Police, Trivandrum as to whether the non-bailable warrant has been requisitioned to be executed through him and as to the details in that regard. It is further ordered in the interest of justice that for the purpose of preservation of the subject matter of the lis, status quo as on today shall be maintained by the respondents. Petitioner will serve a copy of this memorandum to learned Public Prosecutor Sri.Jestin Mathew, today itself.” 3. Heard Sri.R.Sunil Kumar, learned counsel appearing for the petitioners (accused Nos.2 & 1) and Sri.Jestin Mathew, learned Prosecutor Crl.M.C.5636/17 - : 3 :- appearing for respondents. 4. The present petition has been filed on the factual premise that non-bailable warrant has already been issued by the Magistrate Court at Gujarat as against the two petitioners herein (A-2 and A-1), in relation to the matter in Anx.A-1 complaint. The learned Prosecutor appearing for the respondent authorities (State of Kerala and Commissioner of Police, Thiruvananthapuram) was requested to get instructions in the matter from the competent Police authorities concerned. Pursuant to the said direction, the Assistant Commissioner of Police, Cyber City Sub Division Kazhakuttam, Thiruvananthapuram city, has filed statement dated 16.8.2017 and additional statement dated 22.8.2017 on behalf of the respondent State authorities. In those statements it has been clearly and categorically stated that summons alone has now been received by the Police Authorities in the State of Kerala, as issued by the Court of Addl. Civil Judge & Judicial Magistrate of First Class, Morbi, Gujarat in relation to C.C.No.3826/2016 and that summons so received by the Police authorities in Kerala are in respect of Sri.Vikraman Nair (second petitioner/Accused No.1) and Sri.Sarojam Rajesh Babu (accused No.3, who is not a party in the present petition) and further that summons in respect of Sri.Biju Panicker (1[st] petitioner/accused No.2) has not so far been received by the Police authorities in Kerala in respect of the above complaint. It is further stated Crl.M.C.5636/17 - : 4 :- therein that the summons issued to the 2[nd] petitioner, Sri.Vikramanan Nair (accused No.1) has been served on him, but that the summons issued in respect of Sri.Sarajam Rajesh Babu (A-3, who is not a party) had to be pasted in his house door by affixture, as the Police authorities could not find out that person in his residence. Copy of the summons issued to Sri.Vikraman Nair (2[nd] petitioner/A-1) and the covering letter in respect of that summons have been produced as Anx.A-1(1) and Anx. A-1(2) along with the abovesaid additional statement dated 22.8.2017. It is pointed out by the learned Prosecutor that the covering letter in respect of the summons at Anx. A-1(2) has used the misnomer “ _warrant_ ” instead of the correct expression of “ _summons_ ” and what was actually received by the 2[nd] respondent Commissioner of Police/District Police Chief, Thiruvananthapuram city, was Anx.A-1(1), which is only a summons and not a warrant. It is reiterated in the abovesaid additional statement dated 22.8.2017 that no non-bailable warrant has so far been received from the abovesaid Magistrate's Court at Gujarat by the 2[nd] respondent, etc. In view of the said factual submissions, as borne out from the abovesaid statements filed by the 2[nd] respondent, it is clear that the averment of the petitioners that non-bailable warrants issued by the Magistrate's Court at Gujarat are being sought to be enforced through the 2[nd] respondent, etc. is not factually correct and so it is only to be noted that the cause of action alleged by the petitioners regarding the issuance Crl.M.C.5636/17 - : 5 :- and attempted service of the non-bailable warrant said to have been issued by the Magistrate court at Gujarat through the 2[nd] respondent Commissioner of Police/District Police Chief, Thiruvananthapuram City, is not factually tenable. 5. In the light of these aspects, Sri.R.Sunil Kumar, learned counsel appearing for the petitioners submits that the 1[st] petitioner/A-2 will move an appropriate application through his counsel before the learned Magistrate court at Gujarat, seeking exemption from personal appearance by virtue of the enabling powers conferred under Sec. 205 of the Cr.P.C., in the light of the legal principles laid down in the judgments of this Court in Reddy v. Excel Glasses Ltd. reported in 2010 (3) KLT SN 11 (C.No.14) = 2010 KHC 548 and that of the Apex Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparel Ltd. reported in AIR 2001 SC 3625 = (2001) 7 SCC 401, Ajith Kumar Chakravorty & Ors. v. Serampore Municipality reported in 1989 Crl.L.J. 523, etc. It is pointed out that it has been held by this Court the judgment in Reddy v. Excel Glasses Ltd. reported in 2010 (3) KLT SN 11 that even before executing bail bond, in the event there are sufficient reasons, the accused is entitled to apply for exemption from personal appearance and that in the light of the precedents as in Bhaskar Industry's case supra and Ajith Kumar Chakravorty's case supra and the provisions contained in Sec. 205 and 317 of the Cr.P.C., in appropriate cases, the Magistrate can allow an Crl.M.C.5636/17 - : 6 :- accused to make even the first appearance through counsel and that the learned magistrate should have considered the petition filed by the accused therein on merits, irrespective of the fact that he did not execute the bail bond, etc. 6. It is further submitted by by Sri.R.Sunil Kumar, learned counsel appearing for the petitioners that even as per the averments in the complaint that the dishonoured cheque in question has been issued and drawn from the account of the 1[st] petitioner (A-2) and that the 1[st] petitioner is suffering from serious kidney ailments as evident from Anx.3 medical certificate dated 11.5.2017 and that he is undergoing regular haemodialysis and has experienced several episodes of pulmonary edema with severe shortness of breath and that he has been strictly advised not to undertake any long travels and that doctors are seriously considering the option of kidney transplantation for him and that it is not virtually possible for him to travel all the way to the court at Gujarat, etc. It is for the petitioners to work out their remedies in accordance with law. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.M.C.5636/17 - : 7 :-