Naseer Kappoor v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 28TH DAY OF AUGUST 2014/6TH BHADRA, 1936** ## **Crl.MC.No. 4672 of 2014 ()** **--------------------------(CMP.NO.4390/2014 IN CC.NO.2550/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,THRISSUR)** **-------------------CRIME NO. 323/1994 OF TOWN EAST POLICE STATION ,THRISSUR DISTRICT** **----------------------------** ## **PETITIONER/ACCUSED:** **-------------------------------------** **NASEER KAPPOOR, AGED 46 YEARS, S/O.HAMZA KAPPOOR, KAPPOOR HOUSE, MANKADA P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH** **RESPONDENT/STATE: ------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031, THROUGH THE SUB INSPECTOR OF POLICE, THRISSUR EAST POLICE STATION, THRISSUR DISTRICT.** **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 4672 of 2014 () ---------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ----------------------------------------------** **ANNEX A: TRUE COPY OF THE ORDER IN CMP NO.4390/14 IN C.C NO.2550/2014 OF THE J.F.C.M-I, THRISSUR DT, 14/8/2014.** **ANNEX B: TRUE COPY OF THE RESIDENT IDENTITY CARD OF THE WIFE OF THE PETITIONER ISSUED FROM TEH UNITED ARAB EMIRATES ANNEX C: TRUE COPY OF THE RESIDENT IDENTITY CARD OF THE DAUGHTER OF THE PETITIONER-SHIRIN KAPOOR ISSUED FROM THE UNITED ARAB EMIRATES** **ANNEX D: TRUE COPY OF THE RESIDENT IDENTITY CARD OF THE DAUTHER OF THE PETITIONER - NASREEN KAPOOR ISSUED FROM THE UNITED ARAB AMIRATES** **ANNEX E: TRUE COPY OF THE CERTIFICATES ISSUED FROM THE EDUCATIONAL INSTITUTION, WHERE THE NASREEN KAPOOR, THE DAUGHTER OF THE PETITIONER IS STUDYING.** **ANNEX F: TRUE COPY OF THE CERTICATES ISSUED FROM THE EDUCATIONAL INSTITUTION, WHERE THE SHIRIN KAPOOR, THE DAUGHTER OF THE PETITIONER IS STUDYING.** ## **RESPONDENT(S)' ANNEXURES: NIL** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M.C. No.4672 of 2014 --------------------------------------------------------------------Dated this the 28[th] day of August, 2014 ## O R D E R This criminal miscellaneous case was filed by the petitioner, challenging the order passed by the court below in Crl.M.P.No.4390/2014 in C.C.No.2550/2014 under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged petition that the petitioner has been arrayed as accused in C.C.2550/2014 arising out of crime No.323/1994 of Thrisisur Town East Police Station, alleging offences under Section 409, 417 and 420 of the Indian Penal Code. After investigation final report was filed and originally it was taken on file as C.C.37/1995 before the Chief Judicial Magistrate Court, Thrissur. Originally the petitioner alone appeared and charge was framed against him and he pleaded not guilty and thereafter it was transferred to Judicial First Class Magistrate Court-I, Crl.M.C.4672/2014 2 Thrissur, for disposal by orders of the Chief Judicial Magistrate, where it was re-numbered as C.C.No.29/1996. Thereafter, he did not appear and so, the case against him was transferred to the register of long pending cases as L.P.No.13/1997. Thereafter he was arrested and produced and the case was re-filed as C.C.No.2550/2014 and he was granted bail on condition of depositing the passport. Thereafter, he filed Crl.M.P.No.4390/2014 for release of the passport, as his visa has to be expired and also he want to be with his wife and children, who are under the threat by the employer there. But the learned magistrate dismissed the application by Annexure-A order, that is being challenged by the petitioner by filing this petition. 3. Herd the learned counsel for the petitioner and learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that, he wants only one month's time for the purpose of going back to U.A.E to get his visa renewed and come back and he will co-operate with the trial of the case. Crl.M.C.4672/2014 3 The counsel for the petitioner also submitted that he intend to bring back his family also here. 5. The application was opposed by the learned Public Prosecutor. 6. I have called for a report from the Judicial First Class Magistrate Court-I, Thrissur, regarding the present stage of the case and the learned magistrate has sent a report, which reads as follows: “As per the reference cited above I may submit that CC2550/14 on the file of this court is a case arose on a charge sheet filed by SI of Police Town East Police Station in Crime No.323/1994 against the accused 3 in numbers alleging commission of the offence punishable u/s. 409, 417 and 420 r/w 34 IPC. The case was originally taken file before CJM Thrissur as CC 37/1995. The 3rd accused by name Nazeer Kapoor, alone appeared. Charge was framed against him and he pleaded not guilty. The case was thereafter transferred to this court for trial. Accordingly the case was refilled as CC.29/1996. But the accused thereafter absconded and hence the case was transferred to long pending register as L.P.No.13/97. Later on arrest of the present accused who was 3rd accused in the original case the case was refilled in the above number. Now the case stands posted to 27.10.2014 for put up the entire records. To my estimate four months time is required to dispose of the matter”. 7. It is an admitted fact that, the petitioner has been arrayed as 3[rd] accused in Crime No.323/1994 of Crl.M.C.4672/2014 4 Thrissur Town East police station and after investigation final report was field and it was originally taken on file as C.C.No.37/1995 against 3 accused persons, including the petitioner for the offences under Section 409, 417 and 420 read with Section 34 of the Indian Penal Code. It is also seen from the report of the learned magistrate that, the petitioner alone appeared in the case earlier and charge was framed against him and he pleaded not guilty and thereafter the case was transferred to the Judicial First Class Magistrate Court-I, Thrissur, namely, the present court, where it is pending and re-numbered as C.C.No.29/1996. Since he did not appear, the case has been transferred to the register of long pending cases as L.P.No.13/1997. It is after long delay of nearly 18 years he was arrested and he was produced before the court and thereafter case against him was re-filed as C.C.2550/2014 and now posted to 27.10.2014 for taking up the back records. The petitioner filed Crl.M.P.No.4390/2014 for permitting him to go abroad for two months, for the Crl.M.C.4672/2014 5 purpose of getting his family back and for that purpose wanted the release of the passport and that was dismissed by the court below, as he was enlarged on bail only on 28.06.2014, that order is being challenged by the petitioner. 8. It is seen that, even now, only the presence of the petitioner alone could be procured. However it is not known as to how much time it will take for disposal of the case as well. It is seen from the report that it was posted to 27.10.2014 for the purpose of putting up the entire case records for making the case ready for trial. So considering the circumstances and also the grievance mentioned in the petition that his visa is likely to expire on 02.09.2014 and he will have to go for getting his family back, some interim arrangement will have to be made. It is true that, his back records show that he is not a believable person and does not deserve any sympathy as such as of right, but that cannot affect his family life as such and also the arrangements to be made for bringing his family back. So considering the circumstances, this court feels that, the Crl.M.C.4672/2014 6 petition can be disposed of as follows: If the petitioner applies to that court restricting time of one month for return, then the learned magistrate is directed to consider and dispose of that application, taking into account the principles laid down in the decision reported in **2009(2) KLT 712 Asok Kumar v. State of Kerala** and on such conditions, as it may think fit to impose for grant permission and to return the passport for the purpose of getting the visa extended and come back after getting an undertaking that, he will produce the passport before that court without any delay before that time and co-operate with the trial of the case. If the application is filed, the learned magistrate is directed to dispose of the application on the date of filing of the application itself. With the above direction, the petition is disposed Crl.M.C.4672/2014 **==> picture [8 x 9] intentionally omitted <==** of. Office is directed to send a copy to the court below immediately. Handover a copy of the order to the counsel for the petitioner as well. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy // P.A. to Judge ss