High Court of KeralaSingle Judge2007-12-06Criminal Misc. Case dismissed with a direction ...

Kandathil Sakkariya v. State of Kerala

Case / Petition Number:Crl.M.C.No.3635 of 2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2007-12-06
Court Decision / Holding: Cr.M.C. No.3635/07 dismissed. However, the court directed that if the petitioner surrenders before the Magistrate and applies for bail, the Magistrate must consider the bail on merits expeditiously, on the date of surrender itself, after giving prior notice to the Prosecutor.
Final Disposition: Criminal Misc. Case dismissed with a direction that on surrender and baill application, the Magistrate must decide on merits expeditiously on the surrender date; no invocation of 482 directed by the Court.

Parties to the Case

Appellants / Petitioners

Kandathil Sakkariya

Respondents

Complainant
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• M. Sasindran
• K. P. Harish

Counsels for Respondents

• Sri. M. Breez

Case Synopsis & Summary

The High Court of Kerala, in Crl.M.C. No. 3635 of 2007, heard a criminal miscellaneous petition by Kandathil Sakkariya, accused No.4, challenging proceedings and seeking bail-related relief under Section 482 Cr.P.C. The case concerns allegations under sections 307 and 326 IPC. Final report had been filed, cognizance taken, and the case committed to the Sessions Court. The co-accused had already been tried, found not guilty, and acquitted; the petitioner, however, had been absconding, with coercive processes issued to secure his presence. The petitioner contended that his absence was not wilful, that he is willing to surrender before the Magistrate and seek regular bail, and that the court should issue directions under Section 482 to ensure bail on surrender, on merits and expeditiously. He also urged expeditious disposal of the case and possible discharge or composition on some offences, given residence abroad. The learned judge rejected invoking 482, citing Moosa v. Sub-Inspector of Police to disallow the absconding-accused benefit, while noting that the existence of general directions for bail in Alice George v. Deputy Superintendent of Police renders special directions unnecessary. Ultimately, the court dismissed the petition but directed that on surrender and a bail application, the Magistrate must decide on merits, expeditiously, on the surrender date, with appropriate orders on merits.

Provisions of Law Cited

Section 307 IPCSection 326 IPCSection 482 Cr.P.C.

Legal Doctrines & Maxims

Inherent jurisdiction of the High Court under Cr.P.C. Section 482

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended absolute innocence, willingness to surrender before the Magistrate, and a request for bail on merits upon surrender, with notice to the Prosecutor. He urged expeditious disposal of the case, possible discharge for some offences, and composition for any compoundable offences. Since he is employed abroad, he sought consideration of practical constraints in scheduling proceedings and asked for Section 482 Cr.P.C. relief to secure bail on surrender and for expeditious handling of the case.

Contentions of Respondents

The respondents (State/Prosecution) opposed special directions under Section 482 and emphasized that bail should be decided by the Magistrate on merits when an application is made, with due opportunity to the Prosecutor. They highlighted that witnesses supported the case in chief but cross-examination was affected by the absence of the accused, and that many offences are non-compoundable. They stressed that the absconding nature of the accused should not yield unwarranted relief and that no extraordinary intervention was warranted; the co-accused were acquitted, which does not automatically entitle the petitioner to relief.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Alice George v. Deputy Superintendent of Police	2003(1)KLT 339	Positive	Used to state that there are general directions for bail, making specific directions unnecessary.
Moosa v. Sub Inspector of Police	2006(1)KLT 552 (FB)	Positive	Authority for the proposition that an absconding co-accused cannot benefit from materials adduced in evidence against co-accused; supports not granting 482 relief.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH DECEMBER 2007 / 15TH AGRAHAYANA 1929 Crl.MC.No. 3635 of 2007() ------------------------SC.1530/2005 of ASSISTANT SESSIONS COURT, PAYYANNUR .................... PETITIONER: ACCUSED NO.4 ------------------------ KANDATHIL SAKKARIYA, S/O.HAMSA, AGED 33 YEARS, PANAPUZHA AMSOM DESOM, ALAKKAD ARIYAM P.O., PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/12/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.3635 of 2007 ---------------------------------------Dated this the 6[th] day of December 2007 ## **O R D E R** The petitioner is the fourth accused and he faces indictment in a prosecution for offences punishable inter alia under Sections 307 and 326 I.P.C. Final report has been filed. Cognizance has been taken. The case has been committed to the court of Session. The petitioner had also entered appearance before the Sessions Court. But thereafter he was not available. The case against the co-accused has already been tried. They were found not guilty and acquitted also. The case against the petitioner has been split up. The petitioner has been reckoned as an absconding accused. Coercive processes have been issued by the learned Sessions Judge to secure the presence of the petitioner. The petitioner finds such processes chasing him. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. His absence earlier was not wilful or deliberate. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that his application for bail may not be considered Crl.M.C.No.3635/07 2 by the learned Magistrate on merits, in accordance with law and expeditiously. He, therefore, prays that directions under Section 482 Cr.P.C. may be issued to the learned Magistrate to release the petitioner on bail when he appears and applies for bail. 3. It is for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate, the circumstances under which he could not earlier appear before the learned Magistrate. I find absolutely no reason to assume that the learned Magistrate would not consider the application for bail to be filed by the petitioner on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific directions appear to be necessary. Sufficient general directions have been issued in Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339]. 4. In the result, this Criminal Miscellaneous Case is dismissed but with the specific observation that if the petitioner surrenders before the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass Crl.M.C.No.3635/07 3 appropriate orders on merits, in accordance with law and expeditiously - on the date of surrender itself. 5. The learned counsel for the petitioner then submits that there may be a direction for expeditious disposal of the case against him. It is for the petitioner to first appear before the learned Magistrate and then make a request for expeditious disposal. The petitioner can certainly urge before the learned Magistrate that he is entitled for discharge so far as some of the offences are concerned. In respect of compoundable offences, if any, the petitioner can pray that composition may be accepted in respect of such offences. If there are any offences surviving, the petitioner can certainly request to the learned Magistrate for expeditious disposal of the case considering the fact that he is employed abroad and he is unable to remain in India. Such request of the petitioner shall be considered by the learned Magistrate and appropriate orders shall be passed. 6. Of course, the learned counsel for the petitioner further raises a contention that the proceedings are liable to be quashed invoking the powers under Section 482 Cr.P.C. In the light of the acquittal of the co-accused, the extraordinary Crl.M.C.No.3635/07 4 inherent jurisdiction can and ought to be invoked, submits the learned counsel for the petitioner. 7. I find absolutely no merit in that contention. Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)] is authority for the proposition that an absconding co-accused cannot claim any benefit or advantage on the basis of the materials adduced in evidence in the trial against the co-accused who face trial. In the instant case I find in the chief examination, all the witnesses supported the prosecution case; but in the course of crossexamination, because of the alleged settlement, they did not choose to support the case of the prosecution. Some of the offences alleged are non-compoundable offences also. In these circumstances, I am unable to accept the request for invocation of the jurisdiction under Section 482 Cr.P.C. ## **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge Crl.M.C.No.3635/07 5 Crl.M.C.No.3635/07 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007