Davis T.A v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938 Crl.MC.No. 7809 of 2016 () --------------------------- AGAINST THE ORDER/JUDGMENT IN CRMP 7156/2016 of J.M.F.C.-III,THRISSUR DATED 1710-2016 CRIME NO. 1278/2012 OF MANNUTHY POLICE STATION , TRISSUR PETITIONER(S)/ACCUSED: --------------------- DAVIS T.A AGED 57 YEARS, S/O.ANTHONY T.L., RESIDING AT THODUYSARAMBAN HOUSE, VALLAKKUNNU, KALLETTUMKARA PO, THRISSUR DISTRICT. BY ADVS.SRI.C.V.MANUVILSAN SRI.T.K.SUJITH SMT.K.VIDYA RESPONDENT(S)/COMPLAINANT-STATE: -------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANNUTHI POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R BY PUBLIC PROSECUTOR, SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD... :2: ## APPENDIX PETITIONERS EXHIBITS : ------------------- ANENXURE A1 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 1278 OF 2012 REGISTERED UNDER SECTION 174 OF THE CODE OF CRIMINAL PROCEDURE, 1973 ANNEXURE A2 A TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE SI OF POLICE MANNUTHI, FOR INCORPORATING THE OFFENCES UNDER SECTIONS 337, 338 AND 304 ANNEXURE A3 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO. 1278 OF 2012 SUBMITTED UNDER SECTION 173 OF THE CODE OF CRIMINAL PROCEDURE, 1973 ANENXURE A4 A TRUE PHOTOCOPY OF THE EMAIL LETTER SEND BY THE DAUGHTER OF THE PETITIONER TO THE PETITIONER, REQUESTING HIS PRESENCE, A TRUE PHOTOCOPY OF THE MEDICAL DOCUMENT OF THE DAUGHTER OF THE PETITIONER ANNEXURE A5 A TRUE PHOTOCOPY OF THE MEDICAL DOCUMENT OF THE DAUGHTER OF THE PETITIONER ANENXURE A6 A TRUE PHOTOCOPY OF THE NOTIFICATION DATED 25.08.1993 ISSUED by the MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA ANENXURE A7 A TRUE PHOTOCOPY OF THE CRIMINAL MISCELLANEOUS PETITION AS CR.MP NO 7156/2016 IN CC NO. 685/2013, BEFORE THE ELARNED JFCM-III, THRISSUR ANNEXURE A8 THE AFFIDAVIT OF THE COUNSEL FOR THE PETITIONER SUBMITTED BEFORE THE LEARNED JFCM-III THRISSUR ANENXURE A9 THE AFFIDAVIT OF THE PETITIONER SUBMITTED BEFORE THE LEARNED JFCM-III, THRISSUR ANNEXURE A10 A TRUE PHOTOCOPY OF THE ADDRESS DETAILS SUBMITTED BY THE PETITIONER BEFORE THE LEARNED JFCM-III, THRISSUR ANNEXURE A11 A TRUE PHOTOCOPY OF THE ORDER PASSED BY THE LEARNED JFCM-III, THRISSUR IN CRL MP NO. 7156/2016 DATED 17.102016 RESPONDENTS EXHIBITS : NIL ------------------- //TRUE COPY// P.A. TO JUDGE SKS **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No. 7809 of 2016 ----------------------------------------Dated this the 16[th] day of November, 2016** ## **O R D E R** - 1.The petitioner herein is the accused in C.C. No. 685 of 2013 on the file of the Judicial First Class Magistrate - III, Thrissur. He is being proceeded against for having committed offences punishable under Sections 337, 338 and 304 (a) of the IPC. - 2.The petitioner is a Contractor, who was awarded with the work of construction of a building in the property belonging to Vellanikkara University. During the concreting work, an accident occurred which led to the demise of one of the workers employed by the petitioner. This led to the registration of the Crime initially under Section 174 of the Code. Later, final report was laid before the court below against the petitioner for the offence inter alia under Section 304A of the IPC. Crl. M.C.No. 7809 of 2016 2 - 3.While the proceedings were pending before the trial court, Annexure-A7 application was filed by the petitioner with a prayer to exempt the petitioner from the operation of Section 6(2)(f) of the Passport Act and sought for the issuance of a passport for a period of one year. Along with the application the petitioner had filed Annexure-A8 affidavit undertaking that he would not dispute his identity at the time of trial. He also filed Annexure-A9 affidavit wherein he has undertaken that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence. - 4.However, the learned Magistrate by Annexure A11 order dismissed the Annexure-A7 application holding that the witnesses have been summoned to appear on 14.11.2016 and the application, if allowed would affect the smooth conduct of the case. The said order is under challenge. - 5.Heard the submissions. Crl. M.C.No. 7809 of 2016 3 - 6.The learned counsel appearing for the petitioner would submit that his daughter has recently delivered a baby and as her husband is not in Station, he requires to go abroad urgently to be with his daughter. The learned counsel has also drawn the attention of this Court to Annexures-A8 and A9 affidavits submitted by the petitioner in tune with the directions issued by this Court in **Raju T.P. v. State of Kerala** [2009(3) KHC 14]. Relying on the decision of this Court in **S.K.Asok Kumar v. State of Kerala** [2009(2) KLT 712], it is submitted that there was no justification on the part of the court below in dismissing his application. - 7.After having considered the materials on record and the submissions advanced, I am of the view that the learned Magistrate was not justified in dismissing the application on the sole ground that the allowing of the application would affect the conduct of the case. The affidavits filed Crl. M.C.No. 7809 of 2016 4 by the petitioner ought to have been considered and when the petitioner had given an undertaking in terms of the directions issued in **Raju.T.P.** (supra), there was no need to insist for the personal presence of the petitioner before court. If the court is of the view that the affidavit is found wanting in any aspect, the petitioner can be directed to file a fresh affidavit. As held in **Raju T.P.** (supra), the court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea of the counsel recorded for and on behalf of the accused, when he is specifically authorised for the purpose and in appropriate cases, if after considering all the aspects of the case, the court holds that the personal attendance of the accused is not essential, the court can dispense with the same and can proceed with the trial or convict the accused. Crl. M.C.No. 7809 of 2016 5 - 8.In the result, this petition will stand allowed. AnnexureA11 order will stand set aside. - 9.The exemption sought for by the petitioner will stand allowed and the passport of the petitioner shall be released for enabling the petitioner to go abroad for a period of six months on his executing a bond for a sum of Rs. 1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum. It shall also be subject to the following conditions. - 1.The petitioner shall give an undertaking before the learned Magistrate that he will return the passport before the Court within a period of six months from the date of obtaining release of the passport from Court. - 2.The petitioner shall leave his local address before the learned Magistrate. He shall also leave the name and other particulars including mobile phone number etc. of his local Advocate, who could be contacted by the Court for giving any direction to the petitioner. - 3.The petitioner shall deposit a sum of Rs.20,000/as security towards Crl. M.C.No. 7809 of 2016 6 temporary release of the passport. - 4.The petitioner shall not leave the country without obtaining prior permission from the learned Magistrate. - 5.The amount deposited by way of security will be liable to be forfeited in case he violates any of the conditions above. The petition is disposed of as above. Sd/- ## **RAJA VIJAYARAGHAVAN.V. JUDGE** SKS //TRUE COPY// P.A. TO JUDGE