Sreejith S Menon v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **BAIL APPL. NO. 2718 OF 2024** **CRIME NO.74/2008 OF Vaikom Police Station, Kottayam** **AGAINST THE ORDER/JUDGMENT DATED IN LP NO.56 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VAIKOM PETITIONER/S:** **SREEJITH S MENON, AGED 59 YEARS SON OF MADHAVAN MENON, KIZHIYAPPAT HOUSE, MANISSERI (P.O), OTTAPPALAM, PALAKKAD, PIN-679 521, NOW RESIDING AT 3, RAJA MADHA NAGAR, 1ST WEST CROSS, VADAVALLI PERUR, COIMBATORE NORTH, TAMIL NADU., PIN - 641041** **BY ADV NIREESH MATHEW** **SR. ADV.C.C.THOMAS** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2718 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1[st] accused in Crime No.74/2008 of the Vaikom Police Station, Kottayam, which is now pending as LP No.56/2010 before the Court of the Judicial First Class Magistrate-I, Vaikom. The petitioner was originally arrested and was enlarged on bail. Subsequently, he had absconded and warrant of arrest was issued against him. Then, the petitioner had surrendered and he was remanded to judicial custody on 21.03.2024. 2. The prosecution allegation against the accused (four in number) is that: between 30.01.2008 and 01.02.2008, the accused, in furtherance of their common intention, had abducted CW1, a real estate dealer, and CW2, a friend of CW1, and had taken them to a place at Pollachi and attempted to extort money from them. They also inflicted serious injuries on the victims. Thus, the accused have committed the offences under Sections BAIL APPL. NO. 2718 OF 2024 3 342, 364-A r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The petitioner was arrested at the crime stage and was enlarged. However, he failed to appear before the learned Magistrate. Consequently, non-bailable warrants were issued against him and finally, his bail bond was cancelled and proceedings under Sections 82 and 83 of the Code of Criminal Procedure were initiated against the petitioner and his sureties. In the meantime, the 4[th] accused had surrendered before the court below and was enlarged on bail. Thereafter, the 3[rd] accused died on 20.06.2023. The 2[nd] accused was also arrested and remanded to judicial custody. The case against the 4[th] accused was split up and committed to the Court of Session. The case against the petitioner and two others were refiled as C.P.No.30/2010. On 21.03.2024, the petitioner surrendered before the jurisdictional Magistrate and his application for bail was dismissed by order dated 21.03.2024. The case filed against him was refiled as CP No.60/2010. The petitioner has been in BAIL APPL. NO. 2718 OF 2024 4 judicial custody since 21.03.2024. 4. Heard; Sri.C.C.Thomas, the learned Senior Counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. 5. The learned Senior Counsel submitted that the petitioner is totally innocent of the accusations leveled against him. It was only because the petitioner did not receive the summons from the jurisdictional Magistrate that he failed to appear before the said court. In fact the petitioner was earlier residing in Palakkad, but had shifted his residence to Coimbatore. The petitioner was under the bonafide belief that the case had ended in acquittal. In fact the 4[th] accused has already been acquitted by the Court of Session. The petitioner had approached this Court and filed Crl.M.C.No.2520/2024. By Annexure 3 order, this Court directed the learned Magistrate to consider and dispose of the petitioner's BAIL APPL. NO. 2718 OF 2024 5 application for bail on the same day the application was filed. However, the learned Magistrate, by the impugned Annexure-4 order, dismissed the petitioner's application. The petitioner has been in judicial custody since 21.03.2024. It is only due to the reasons already stated in the application that the petitioner failed to appear before the learned Magistrate. There is no willful laches or negligence on the part of the petitioner. Annexure-2 certificate shows that the petitioner does not have any criminal antecedents. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner was absconding for 15 long years. Coercive proceedings were initiated against the petitioner and his BAIL APPL. NO. 2718 OF 2024 6 sureties and non-bailable warrants were pending against him right from 18.09.2009. It is only because the petitioner evaded the process of law for nearly 15 years, the learned Magistrate has remanded him to judicial custody. There is willful laches on the part of the petitioner. The petitioner may be directed to face the trial as an under trial prisoner. Hence, the application may be dismissed. 7. When the application came up for consideration on 08.04.2024, taking into consideration the submissions made across the Bar and the observations made by the learned Magistrate in Annexure-4 order, this Court had called for a report from the learned Magistrate to furnish the proceedings in Crime No.74/2008. Consequent to the said order, the learned Magistrate has placed on board the proceedings in the above case. BAIL APPL. NO. 2718 OF 2024 7 8. A reading of the proceedings would show that the summons were issued to the petitioner from 05.09.2008 to 29.06.2009. It is only because the petitioner failed to appear before the said court, a bailable warrant was issued against him and his sureties on 23.07.2009. Yet, the petitioner and his sureties failed to appear and nonbailable warrants were issued against him and his sureties. Finally, proceedings under Sections 82 and 83 were initiated on 27.02.2010. Yet, the petitioner did not appear before the Trial Court. Ultimately, the case was transferred to the as long pending register L.P.No.56/2010 and distress warrants were repeated against the petitioner. It is after 16 years, that the accused finally surrendered before the court below on 21.03.2024 and the case was re-filed as C.P.No.60/2010. His application to enlarge him on bail was dismissed by BAIL APPL. NO. 2718 OF 2024 **==> picture [7 x 9] intentionally omitted <==** the learned Magistrate taking into consideration the petitioner's laches and negligence. 9. On an analysis of the proceeding sheet in Crime No.74/2008, it can be seen that the petitioner after getting enlarged on bail at the crime stage has failed to appear before the court below which led to a distress warrant issued against him. 10. The reason stated by the petitioner is that, even though he was initially residing in Palakkad, he was compelled to shift his residence to Coimbatore, Tamil Nadu due to an acrimony in the relationship in his wife's family. The petitioner has produced Annexure-2 certificate issued by the Tamil Nadu Police to show that he is a person without any criminal antecedents. It also shows that the petitioner is currently residing in Coimbatore, Tamil Nadu. BAIL APPL. NO. 2718 OF 2024 9 11. The petitioner had filed Crl.M.C.No.2520/2024 before this Court apprehending that his application may be rejected by the learned Magistrate. By Annexure-3 order, this Court directed the learned Magistrate to consider and dispose of the petitioner's application for bail on the date on which it is filed. However, by Annexure-4 order, the learned Magistrate has rejected the application on the specific finding that there is every likelihood of the petitioner again absconding and the trail in the case getting further procrastinated. 12. After a comprehensive evaluation of the materials placed on record and taking note of the law laid down by the Honorable Supreme Court in **Sanjay Chandra v. CBI,** [2012 1 SCC 40], wherein it is held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found BAIL APPL. NO. 2718 OF 2024 10 guilty. Any imprisonment prior to the conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 13. In **Dataram Singh v. State of U.P.,** [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 14. In **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay BAIL APPL. NO. 2718 OF 2024 11 in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 15. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that the petitioner had shifted his residence from Palakkad to Coimbatore and that he did not receive summons in the case, which was the reason why he failed to appear before the jurisdictional Magistrate, that the 4[th] accused was arrested and produced before the court below on 19.08.2010 and was enlarged on bail on the following day on 21.08.2010 that the petitioner has been in judicial custody since 21.03.2024 and the petitioner does not have any criminal antecedents, I am of the view that the petitioner is entitled to the benefit of BAIL APPL. NO. 2718 OF 2024 12 being enlarged on bail, but subject to stringent condition that he shall participate in the trial and get the proceedings concluded expeditiously. In the result, the application is allowed, by directing the petitioner to be released on bail, on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties who are hailing from the State of Kerala, to the satisfaction of the jurisdictional Magistrate, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the proceedings in Crime No.74/2010; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any BAIL APPL. NO. 2718 OF 2024 13 manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/09.04.24 BAIL APPL. NO. 2718 OF 2024 14 ## **APPENDIX OF BAIL APPL. 2718/2024** ## **PETITIONER ANNEXURES** ## **Annexure 1** **TRUE PHOTO COPY OF THE RENT AGREEMENT DATED 01.12.2022 EXECUTED BETWEEN THE PETITIONER'S WIFE RAJANI.K AND THE OWNER OF THE HOUSE BY NAME BABY LEKSHMI.K** **Annexure 2 TRUE PHOTO COPY OF THE POLICE VERIFICATION REPORT ISSUED BY THE TAMIL NADU POLICE DATED 23.06.2023** **Annexure 3 TRUE PHOTO COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 14.03.2024 IN CRL.M.C NO. 2520/2024** **Annexure 4 FREE COPY OF THE ORDER DATED 21.03.2024 IN CMP NO. 1704/2024 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VAIKOM**