## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
## **FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936**
## **OP(CRL.).NO. 118 OF 2014 (Q)**
**--------------------------------------[S.C.NO.781/13 ON THE FILE OF THE 3RD ADDITIONAL ASSISTANT SESSIONS JUDGE, KOZHIKODE]**
**...............**
**PETITIONER:**
**-------------------**
**HAMEED, AGED 42 YEARS, S/O. KUNHAYIN, VELLACHALIL HOUSE, VELIMANNA, THAMARASSERY, KOZHIKODE DISTRICT.**
**BY ADV. SRI.P.V.KUNHIKRISHNAN.**
**RESPONDENT:**
**----------------------**
**STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031.**
**BY PUBLIC PROSECUTOR SMT. S. HYMA.**
**THIS O.P (CRIMINAL) HAVING COME UP FOR ADMISSION ON 11-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Prv.**
## **O.P.(CRL.).NO.118/2014 - Q:**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
## **EXHIBIT P1: TRUE COPY OF THE POLICE CHARGE DATED 21-5-2008 SUBMITTED AGAINST THE PETITIONER AND OTHERS.**
**EXHIBIT P2: TRUE COPY OF THE VISA ENQUIRY SLIP DATED 3-6-2014 AND POWER OF ATTORNEY.**
**EXHIBIT P2(A):TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2 DONE BY THE ARABIC INSTITUTE TRANSLATION SERVICES, KOZHIKODE.**
## **RESPONDENT'S EXHIBITS: NIL.**
**//TRUE COPY//**
**P.A. TO JUDGE.**
**Prv.**
## **K. Ramakrishnan, J. ============================== O.P.(Criminal)No.118 of 2014 ============================== Dated this, the 11[th] day of July, 2014.**
## **J U D G M E N T**
This is an application filed by the petitioner who is the sole accused in S.C.No.781/2013 pending before 3[rd] Additional Assistant Sessions Court, Kozhikode seeking direction for a speedy disposal and in the alternate for granting permission to go abroad to renew his visa and come back at the time of trial under Article 227 of Constitution of India.
2. It is alleged in the petition that the petitioner is now the sole accused in S.C.No.781/2013 on the file of 3[rd] Additional Assistant Sessions Court, Kozhikode. Originally there were 6 accused in the case. Petitioner who is the first accused and accused Nos.2, 4 and 6 surrendered before the committal court on getting summons and the case was committed to Sessions Court and since he did not appear, the case against him was split up and other accused were tried and acquitted as per order in S.C.No.528/2009. As regards some of the accused who appeared later, cases are pending as S.C.No.672/2011 and 137/2012 before the same court. Now,
O.P.(Criminal)No.118 of 2014 : 2 :
he surrendered before the court and it was refiled as S.C.No.781/2013. He could not participate in the trial earlier, because he had to go abroad in connection with his employment. Now, he is prepared to co-operate with the trial,
but he has got only two months visa and visa will be expired within two months and so the trial will have to be completed within that time. So, the petitioner has no other remedy except to approach this court seeking the following reliefs:
_“i) Issue a writ or direction directing the 3[rd] Additional Assistant Sessions Judge, Kozhikode, to dispose S.C.No.781/2013 as expeditiously as possible at any rate within one 2 months Or in the alternative_
_ii) Issue an order or direction directing the 3[rd] Additional Assistant Sessions Judge, Kozhikode, to permit the petitioner to go abroad for one year based on Ext.P2 VISA.”_
3. On the basis of the reliefs claimed in the petition, this court felt that the petition can be disposed of at the admission stage itself after hearing the Counsel for the petitioner and the learned Public Prosecutor and after getting a report from the 3[rd] Additional Assistant Sessions Court, Kozhikode in this matter. Accordingly, a report has been called for an the learned Assistant Sessions Judge sent a report
## O.P.(Criminal)No.118 of 2014 : 3 :
## which reads as follows:
_“SC 781/2013 pending on the files of this court is a case charge sheeted by the Circle Inspector of police Kodenchery, alleging offence punishable U/s 143, 147, 148, 332 r/w 149 IPC and Section 20 of the Kerala River Bank Protection and Regulation of Removal of Sand Act._
_There were altogether six accused persons in the charge sheet filed before the Judicial first Class Magistrate Court-II, Thamarassery. Out of the same A3 and A5 were absconding. Hence case against A3 and A5 were split up and case against A1, A2, A4 and A6 in the charge sheet was committed to this court. On committal case was taken on file as S C 528/09. Since accused No.1 (Accused No.1 in the charge sheet) was absconding case against him was split up and refiled as S C 781/13. Accused in SC 781/13 namely Hameed surrendered before this court on 18.12.2013 and he was released on bail. There after the case stands posted to 15.07.2014 for hearing regarding charge and for framing charge._
_I took charge as IIIrd Additional Assistant Sessions Judge, Kozhikode on 21.05.2014 only. I am trying to dispose of all the Sessions cases filed before 31.12.2013 at the earliest as those cases are included in the target suggested by me. To dispose of this case according to me at least 6 months more time is necessary._
_I assure that I shall try my best to dispose of the case within 6 months._
_The above facts are reported for your kind consideration and necessary orders.”_
## 4. When the application came up for hearing today,
the Counsel for the petitioner submitted that if the case is not
O.P.(Criminal)No.118 of 2014 : 4 :
able to be disposed of within two months, then his alternate prayer of granting permission to him to go abroad to pursue his employment and permit to come when the case is posted for evidence may be considered.
5. The application was opposed by the Public Prosecutor on the ground that he has not appeared earlier and he was an absconding accused.
6. It is an admitted fact that the petitioner was arrayed as an accused along with 5 other persons in Crime No.103/07 of Kodenchery Police Station and after investigation, final report was filed and it was taken as C.P.No.35/08 on the file of Judicial First Class Magistrate Court, No-II, Thamarassery and the present petitioner along with 3 others appeared before the committal court and others did not appear and the learned magistrate had committed the case against 4 accused persons including the petitioner to the Sessions Court, Kozhikode and the Sessions Court has taken cognizance of the case as S.C.No.528/09 and it was made over to 3[rd] Additional Assistant Sessions Court, Kozhikode for disposal. While so, he went abroad. So he could not participate in the trial. He was shown as first accused in the
O.P.(Criminal)No.118 of 2014 : 5 :
case. Accused Nos.2 to 4 faced trial and they were acquitted. Since the present petitioner did not appear, case against him was split up and now refiled as S.C.No.781/2013. It is seen also from the report that other absconding accused not appeared so far. Now, the prayer of the petitioner is to have a speedy disposal of the case as his visa will expire within two months and he will have to go abroad within that time. It is seen from the report of the Assistant Sessions Judge that it is not a targeted case and it will take at least 6 months for disposal. But, the purpose of the petitioner will not be served if so much time is granted as his visa will expire and that will cause difficulty for him to go abroad and get it revived as well. So, instead of directing the Sessions Judge to dispose of the case within a time frame, considering the fact that it is a case of 2013, if the Sessions Judge is of opinion that if he is not able to dispose of the case before 06.08.2014 when the petitioner's visa is likely to expire, then, if the petitioner applies for permission to go abroad for a temporary period, then, the learned Sessions Judge shall consider and dispose of that application taking into consideration the principles laid down in **Asok Kumar v. State of Kerala [2009 (2) KLT**
O.P.(Criminal)No.118 of 2014 : 6 :
**712]** and pass appropriate orders on 15.07.2014 itself, so that, if the court permits, he can go abroad and come back within the time specified by that court on which date, the court can schedule the case for trial.
## So, the petition is disposed of as follows:
If the learned Sessions Judge feels that the case cannot be disposed of before 06.08.2014, if the petitioner applies for permission to go abroad, then, the learned Sessions Judge is directed to consider and dispose of the application considering the principles laid down in **Asok Kumar v. State of Kerala [2009 (2) KLT 712]** in accordance with law on 15.07.2014 itself. So that the petitioner can go abroad and renew his visa and come back when the case is scheduled for trial to co-operate with trial of the case.
With the above direction and observation, the petition is disposed of.
Sd/-
## **K.Ramakrishnan, Judge.**
Bb
## _[True copy]_
_P.A to Judge_
