Midhun v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **Crl.MC.No.6476 OF 2019(H)** **For direction to release passport in CRIME NO.81/2015 OF Kolavalloor Police Station, Kannur** ## **PETITIONER/ACCUSED NO.35:** **MIDHUN AGED 29 YEARS S/O. BHASKARAN, CHALIL HOUSE, THRIPPANGOTTOOR, AMSOM, CENTRAL POYILOOR, KANNUR DISTRICT-670 693** **BY ADVS. SRI.K.SIJU SRI.S.ABHILASH SMT.S.SEETHA** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA AT ERNAKULAM-31** **2 STATION HOUSE OFFICER, KOLAVALLOOR POLICE STATION, KANNUR DISTRICT-670 692** ## **SMT V SREEJA-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.10.2019, THE COURT ON 10.10.2019 PASSED THE FOLLOWING:** Crl.M.C.6476 of 2019 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.6476 of 2019 ---------------------------------------------Dated this the 10[th] day of October, 2019 ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The petitioner is Accused No.35 in the case registered as Crime No.81/2015 of the Kolavalloor police station under Sections 143, 147, 148, 341, 506(ii), 427 and 307 I.P.C and Sections 3 and 5 of the Explosive Substances Act, 1908. 3. The prosecution case is that, on 20.01.2015, at about 07.30 a.m, the accused together obstructed the car in which the injured persons were travelling and that they hurled bombs at the car and made attempt to murder them. 4. The petitioner was released on bail during the investigation stage of the case. After completing investigation, chargesheet in the case was filed. However, during the committal Crl.M.C.6476 of 2019 3 proceedings, the petitioner did not appear before the court. The case against all other accused was committed to the Court of Session. The case against the petitioner was split up and refiled and ultimately, after taking steps under Sections 82 and 83 of the Code, it was transferred to the register of long pending cases as L.P.No.38/2018. 5. On 24.06.2019, the petitioner surrendered before the Magistrate's Court concerned. On the same day, he was granted bail on the condition that he shall surrender his passport in the court within two days. Accordingly, the petitioner surrendered his passport in the court. 6. Subsequently, the petitioner filed application in the Magistrate's Court concerned for releasing the passport to him. His plea was that he was working abroad and that he had come on leave and he had to return abroad for his job and the passport was required for that purpose. Learned Magistrate, as per the order dated 14.08.2019, dismissed the application. Learned Magistrate found that the presence of the petitioner is required for committing the case against him to the Court of Crl.M.C.6476 of 2019 4 Session and if the passport is released to him, he may again abscond. 7. The petitioner filed application under Section 439(1)(b) of the Code in the Court of Session for releasing the passport to him. Learned Sessions Judge dismissed the application on the finding that, if the passport is released to the petitioner, he may abscond and it would result in dragging the trial of the case. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. 9. Learned counsel for the petitioner submitted that the case against the petitioner has been committed to the Court of Session and that it may take some time for commencement of the trial of the case. Learned counsel submitted that, if the passport is not released to the petitioner, he would lose his job abroad and it would affect his livelihood. Learned counsel further submitted that the petitioner is prepared to furnish cash security to ensure his presence during the trial of the case. 10. Sections 437(3) and 439(1) of the Code empower the court to impose, in the interests of justice, necessary conditions Crl.M.C.6476 of 2019 5 on releasing a person on bail, who is accused of an offence of the nature specified therein. Even in a case where a person is accused of any non-bailable offence not falling within the aforesaid provisions, the Court has the discretion to impose necessary conditions on granting him bail (See **Mohammed Rafeek v. Union of India : 2011 (3) KLT 117** ). 11. A direction to surrender the passport of a person in the court would curtail his right to travel abroad. But, it is within the power of the Court, while releasing on bail a person accused of committing a non-bailable offence, to impose a condition that such person shall surrender his passport in the Court (See **Hazarilal Gupta v. Rameswar Prasad : AIR 1972 SC 484** ). The purpose of making such a direction is to ensure the availability of the accused during the investigation and the trial of the case. 12. In the instant case, the plea of the petitioner is that he is employed abroad and if the passport is not released to him, he would lose his job. 13. If the passport is not released to the petitioner, he may Crl.M.C.6476 of 2019 6 lose his job and it may deprive him of his livelihood. At the same time, the court cannot forget the fact he is a person accused of committing grave offences. He had once violated the conditions of bail granted to him. His presence in the court has to be ensured during the trial of the case. 14. These are situations not free from difficulty. On the one side, the legal process has to reach its normal culmination. On the other side, there is the agony of the accused that he cannot go abroad for employment. In such situations, a solution has to be worked out in the interests of justice (See **Gian Singh v. State of Rajasthan : (1999) 5 SCC 694** ). 15. In the instant case, it is stated in the petition that the case against the petitioner now stands committed to the Court of Session, Thalassery. Learned counsel for the petitioner has submitted that the petitioner is ready to furnish cash security. Considering the facts and circumstances of the case, I find that the passport of the petitioner can be ordered to be released to him on depositing an amount of Rs.1,00,000/- or furnishing bank guarantee for that amount and imposing other appropriate Crl.M.C.6476 of 2019 7 conditions. 16. In the result, the petition is allowed and it is ordered as follows: The passport of the petitioner shall be released to him on depositing an amount of Rs.1,00,000/- (Rupees one lakh only) or furnishing bank guarantee for the said amount in the Court of Session concerned. The petitioner shall file an undertaking in the form of affidavit in that court that he shall appear before the court as and when required. He shall also specify in such affidavit his address abroad to which the communications from the court shall be sent. If the petitioner makes default in appearing before the Court of Session as and when required by that court, the amount deposited by him or offered as bank guarantee shall stand forfeited. It is made clear that this order shall be effective only if the case against the petitioner has been committed to the Court of Session. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.6476 of 2019 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-I** **THE COPY OF ORDER DATED 14.8.2019 IN CRL.M.C.NO.4118/2019 IN C.P.NO.15/2019 ON THE FILE OF CJM COURT, THALASSERY** **ANNEXURE-II** **THE COPY OF ORDER DATED 3.9.2019 IN CRL.M.P.NO.5323/2019 ON THE FILE OF THE SESSIONS COURT, THALASSERY** ## **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **PS TO JUDGE**