Sakthidharan C and Shamseer CP v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 5[TH] DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945 CRL.MC NO. 7160 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT ST 56/2021 OF CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE ``` ## **`PETITIONERS/ACCUSED 1 & 2:`** - `1 SAKTHIDHARAN C AGED 59 YEARS` ``` S/O KUTTIKRISHNAN NAIR, KAIPURATH HOUSE, CHELANNUR PO, KOZHIKODE, PIN - 673613 ``` - `2 SHAMSEER CP AGED 34 YEARS` ``` S/O MUHAMMED, CHUNDUM PILAKOOL HOUSE, ERAMANGALAM PO, BALUSSERY, KOZHIKODE, PIN - 673612 ``` ``` BY ADV K.V.RASHMI ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** - `1 ASSISTANT MOTOR VEHICLE INSPECTOR REGIONAL TRANSPORT OFFICE (ENFORCEMENT) CHEVAYUR, KOZHIKODE, PIN - 673017` - `2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031` - `3 SUB INSPECTOR OF POLICE BALUSSERY POLICE STATION, STATE HIGHWAY 34, KOYILANDY - THAMARASSERY ROAD, KOZHIKODE, PIN - 673612` ``` CRL. M.C. NO.7160 OF 2023 ``` 2 ``` PRESENT: ``` ``` SMT. SEENA C., PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.7160 OF 2023 ``` 3 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 7160 of 2023 -------------------------------------Dated this the 05[th] day of September, 2023** ## **O R D E R** 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 petitioners are the accused in S.T. No.56/2021 pending on the file of Chief Judicial Magistrate Court, Kozhikode. The offences alleged against the petitioners are under Sections 113(3)(b) r/w 194(1) of the Motor Vehicle Act and Section 4 of the Kerala Motor Vehicle Taxation Act r/w 66(1) and Section 192A(1) of the Motor Vehicle Act, 1988. It is the case of the petitioners that, after taking congnizance, the learned Magistrate issued summons 4 ``` CRL. M.C. NO.7160 OF 2023 ``` to the petitioners and they appeared before the Court below. Thereafter, the case was posted for recording plea of the accused. Since the petitioners could not appeared due to unavoidable reasons, warrant was issued and later Sections 82 and 83 of Cr.P.C. steps were initiated. The petitioners apprehend that, if the petitioners are surrender before the lower court, the learned Magistrate will remand them. 3. The petitioners submitted that the petitioners are ready to surrender before the jurisdictional court and if they surrender before the jurisdictional court, jurisdictional court may remand them without considering their 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 petitioners on bail and that is a matter to be decided by 5 ``` CRL. M.C. NO.7160 OF 2023 ``` 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 accused to custody pending trial, it must be ensured that the_ ``` CRL. M.C. NO.7160 OF 2023 ``` 6 _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 petitioners 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 petitioners shall surrender before the jurisdictional court within two weeks from today. If an application for bail with advance copy to the prosecutor 7 ``` CRL. M.C. NO.7160 OF 2023 ``` concerned is filed at the time of surrender by the petitioners, 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 petitioners to appear before the court below, coercive proceedings pending against the petitioner shall be kept in abeyance for a period of two weeks. nvj Sd/- **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.7160 OF 2023 ``` 8 ## **`APPENDIX OF CRL.MC 7160/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE AA TRUE COPY OF THE NOTICES ISSUED TO THE SURETIES OF THE PETITIONERS DATED 30.05.2023 ANNEXURE BA TRUE COPY OF THE PROCEEDING PAPER DOWNLOADED FROM THE E-COURT ``` RESPONDENTS EXHIBITS :NIL ## //TRUE COPY// PA TO JUDGE