MANOJ K. GEORGE and ANN MARY GEORGE v. STATE OF KERALA, UNION OF INDIA, CONSULATE GENERAL OF INDIA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 ``` ``` CRL.MC NO. 4628 OF 2022 ``` ``` AGAINST THE ORDER IN CC 1204/2017 OF ADDITIONAL CHIEF ``` ## **`JUDICIAL MAGISTRATE, ERNAKULAM`** ## **`PETITIONERS/ACCUSED:`** - `1 MANOJ K. GEORGE, AGED 48 YEARS S/O. GEORGE HAVING RESIDENTIAL ADDRESS AT KUMARICKAL HOUSE, AKG ROAD, EDAPPALLY, KOCHI682024, NOW RESIDING AT NOW RESIDING AT 4016, GROVER CT, CARMICHAEL CA - 95608, PIN - 682024` - `2 ANN MARY GEORGE @ REENA, AGED 44 YEARS W/O. MANOJ GEORGE HAVING RESIDENTIAL ADDRESS AT KUMARICKAL HOUSE, AKG ROAD, EDAPPALLY, KOCHI682024, NOW RESIDING AT NOW RESIDING AT 4016, GROVER CT, CARMICHAEL, CA - 95608, PIN - 682024 BY ADVS. K.SANDESH RAJA SHANKAR V. P.L.MARY TREASA` ## **`RESPONDENTS/COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 UNION OF INDIA, REPRESENTED BY THE SECRETARY DEPARTMENT OF EXTERNAL AFFAIRS SOUTH BLOCK, NEW DELHI, PIN - 110011` - `3 CONSULATE GENERAL OF INDIA, 540 ARGUELLO BOULEVARD, SAN FRANCISCO, CALIFORNIA, CA 94118, USA., PIN - 941181` - `BY ADV MANU S. ASG OF INDIA` 2 Crl.M.C.4628/2022 ## **`OTHER PRESENT:`** ``` SANGEETHA RAJ PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 3 Crl.M.C.4628/2022 ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.No.4628 of 2022** ## **------------------------------------------Dated this the 25[th] day of September, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). ## 2. The above Crl.M.C is filed with the following prayer: ‘On these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Hon’ble Court may be pleased to quash all proceedings based on Annexure-3 Charge sheet/final report as C.C.No.1204/2010 now numbered as L.P.No.36 of 2019 before the Additional Chief Judicial Magistrate’s Court, Ernakulam which arises from Crime No.213/2015 of Ernakulam Town North Police Station, Ernakulam in the interest of justice.’ 3. Today, when the matter came up for consideration, the learned counsel for the petitioners submitted that the 1[st] petitioner is now in India and he is ready to surrender before the Court concerned. The 1[st] petitioner apprehend that if he surrenders before 4 Crl.M.C.4628/2022 the learned Magistrate, he will be remanded without considering the bail application. 4. The Public Prosecutor submitted that no such apprehension is necessary and this court may not pass any direction to the lower court to release the 1[st] petitioner on bail and that is a matter to be decided by the trial court. 5. This court in **Vineeth Somarajan @ Ambadi v. State of Kerala and another (2009 (3) KHC 471)** relied on the dictum laid down by another learned Single Judge in **Biju S. Praveen v. State of Kerala and Another (2007 (2) KLT 280)** considered this point. It will be better to extract the relevant portion of **Vineeth Somarajan'** s case (supra). “14. The apprehension of the petitioner is that if he appears before the Trial Court, he would be remanded to judicial custody. In Biju v. State of Kerala, 2007 KHC 3436 : 2007 (2) KLT 280 : 2007 (1) KLJ 713 : ILR 2007 (2) Ker. 26 : 2007 (1) KLD 486, Justice A. K. Basheer, after noticing the practice that is being followed by some learned Magistrates (vide paragraph 16) held at paragraph 18 thus: '18. As mentioned earlier, Criminal Courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the Court decides to send an 5 Crl.M.C.4628/2022 accused to custody pending trial, it must be ensured that the Court applies its mind judicially and judiciously with particular reference to the facts and circumstances of the case. The mere fact that the accused had failed to respond to a summons or that the Court had to issue non bailable warrant to compel his presence will not ipso facto empower the Criminal Court to remand the accused to custody as a punitive measure when he appears before the Court on his own volition or is produced in execution of the warrant. The bail application that may be moved on his behalf has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtailed in a whimsical or disdainful manner.' I am in respectful agreement with the dictum laid down in Biju v. State of Kerala.” 6. In the light of the above dictum laid down by this court, I think the apprehension of the 1[st] petitioner that the jurisdictional court will remand the accused without application of mind is unnecessary. Therefore, this Criminal Miscellaneous Case is disposed of with the following directions: 1) The 1[st] petitioner shall surrender before the jurisdictional court within two weeks from today. If an application for bail with advance copy to the prosecutor 6 Crl.M.C.4628/2022 concerned is filed at the time of surrender by the 1[st] petitioner, the jurisdictional court shall consider the same and pass appropriate orders in accordance with law, ideally on the date of surrender itself. 2) In order to enable the 1[st] petitioner to appear before the court below, coercive proceedings pending against the 1[st] petitioner shall be kept in abeyance for a period of two weeks. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 7 Crl.M.C.4628/2022 ## **`APPENDIX OF CRL.MC 4628/2022`** ## `PETITIONER ANNEXURES` |`Annexure 1`|`TRUE COPY OF THE COMPLAINT DATED`| |---|---| ||`6.8.2005 SUBMITTED BEFORE THE JUDICIAL`| ||`FIRST CLASS MAGISTRATE'S COURT-I,`| ||`ERNAKULAM`| |`Annexure2`|`TRUE COPY OF THE FIR RELATED TO CRIME`| ||`NO; 213/2005 OF THE ERNAKULAM TOWN NORTH`| ||`POLICE STATION DATED 11.08.2005`| |`Annexure 3`|`CERTIFIED COPY OF THE CHARGE SHEET IN`| ||`C.C NO: 474/2010 IN L.P. NO.36/2019 ON`| ||`THE FILES OF THE ADDITIONAL CHIEF`| ||`JUDICIAL MAGISTRATE'S COURT, ERNAKULAM`| |`Annexure 4`|`TRUE COPY OF THE SCREEN SHOT OF THE`| ||`PROCEEDINGS OF C.C. NO.474 OF 2010 OF`| ||`THE JFCM II ERNAKULAM RECEIVED FROM THE`| ||`E.COURTS WEB SITE DATED 11/11/2015`| |`Annexure 4 (a)`|`TRUE COPY OF THE SCREEN SHOT OF THE`| ||`PROCEEDINGS OF C.C. NO.474 OF 2010 OF`| ||`THE JFCM II ERNAKULAM RECEIVED FROM THE`| ||`E.COURTS WEB SITE DATED 6/5/2016`| |`Annexure 4 (b)`|`TRUE COPY OF THE SCREEN SHOT OF THE`| ||`PROCEEDINGS OF C.C. NO.474 OF 2010 OF`| ||`THE JFCM II ERNAKULAM RECEIVED FROM THE`| ||`E.COURTS WEB SITE DATED 20/10/2017`| |`Annexure 5`|`TRUE COPY OF SCREEN SHOT OF THE`| ||`PROCEEDINGS OF C.C 1204 OF 2017 PENDING`| ||`BEFORE THE ACJM ERNAKULUM RECEIVED FROM`| ||`THE E.COURTS WEB SITE DATED 28/12/2017`| |`Annexure 5 (a)`|`TRUE COPY OF SCREEN SHOT OF THE`| ||`PROCEEDINGS OF C.C 1204 OF 2017 PENDING`| ||`BEFORE THE ACJM ERNAKULUM RECEIVED FROM`| ||`THE E.COURTS WEB SITE DATED 3/4/2018`| |`Annexure 5 (b)`|`TRUE COPY OF SCREEN SHOT OF THE`| ||`PROCEEDINGS OF C.C 1204 OF 2017 PENDING`| ||`BEFORE THE ACJM ERNAKULUM RECEIVED FROM`| ||`THE E.COURTS WEB SITE DATED 11/4/2019`| |`Annexure 6`|`TRUE COPY OF THE PASSPORT DETAILS OF THE`| ||`1ST PETITIONER`| |`Annexure 7`|`TRUE COPY OF THE CONSENT TO RESTORE`| ||`DETAILS DATED 12.3.2022 AS IN THE`| ||`CURRENT PASSPORT DETAILS APPLICATION IS`| ||`SUBMITTED BY THE 1ST PETITIONER BEFORE`| 8 Crl.M.C.4628/2022 |||`THE 3RD RESPONDENT ALONG WITH THE`| |---|---|---| |||`ACCOMPANYING APPLICATIONS`| |`Annexure`|`8`|`TRUE COPY OF THE ONLINE APPLICATION FORM`| |||`FOR INDIAN PASSPORT GENERATED ON`| |||`9/3/2022 SUBMITTED BY THE 1ST PETITIONER`| |||`TO THE 3RD RESPONDENT`| |`Annexure`|`9`|`TRUE COPY OF THE DISCHARGE SUMMARY DATED`| |||`25/4/2023 ISSUED BY THE SREE GOKULAM`| |||`MEDICAL COLLEGE & RESEARCH FOUNDATION`| |`Annexure`|`10`|`TRUE COPY OF THE CLINICAL SUMMARY`| |||`06/09/2023 ISSUED BY THE LOPAMUDRA`| |||`SIDDHA HEALTH CARE CENTRE,`| |||`THIRUVANANTHAPURAM`| |`Annexure`|`11`|`TRUE COPY OF THE CERTIFICATE DATED`| |||`20/7/2023 ISSUED BY THE PROCARE`| |||`HOSPITAL, THIRUVANANTHAPURAM`| |`Annexure`|`12`|`TRUE COPY OF THE CERTIFICATE DATED`| |||`05/09/2023 ISSUED BY THE SREE GOKULAM`| |||`MEDICAL COLLEGE & RESEARCH FOUNDATION`| |`Annexure`|`13`|`TRUE COPY OF THE CERTIFICATE DATED`| |||`10/8/2023 ISSUED BY THE JEEVANAM KALARI`| |||`MARMA TREATMENT CENTRE,`| |||`THIRUVANANTHAPURAM`|