Kerala High Court

Baiju @ Porinchu Baiju vs State Of Kerala on 31 August, 2022

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                    &
                THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
         Wednesday, the 31st day of August 2022 / 9th Bhadra, 1944

               CRL.M.APPL.NO.1/2022 IN CRL.A NO. 930 OF 2019

        SESSIONS CASE NO.558/2010 OF THE SESSIONS COURT, THRISSUR.

APPLICANT/APPELLANT

     BAIJU @ PORINCHU BAIJU, AGED 51 YEARS, S/O. KUNJU, KOLLAMPARAMBIL
     HOUSE, EDAPPALLY VILLAGE, VENNALA DESOM, ERNAKULAM DISTRICT - 682
     028.

RESPONDENT/RESPONDENT

     STATE OF KERALA (REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MALA
     POLICE STATION - CR. NO. 189/2018 OF MALA POLICE STATION)
     REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
     ERNAKULAM - 682 031.


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the
applicant/appellant by the judgment of conviction and sentence in S.C.No.
558 of 2010 on the files of the Court of the District & sessions Judge,
Thrissur dated 18.08.2018 and release the applicant/appellant on bail,
pending disposal of the above criminal appeal in the interests of justice.




     This Application coming on for orders upon perusing the application
and upon hearing the arguments of SRI. RAJESH VIJAYAN, Advocate for the
petitioner and PUBLIC PROSECUTOR for the respondent, the court passed the
following:




                                                                     P.T.O
         K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
         ------------------------------------
                  Crl.MA No.1 of 2022
                           in
               Crl.Appeal No.930 of 2019
         -------------------------------------
        Dated this the 31st day of August, 2022

                           O R D E R

Jayachandran, J.

1. Petitioner/appellant is the sole accused in S.C

No.558/2010 of the Sessions Court, Thrissur. As per

judgment dated 18.8.2018, the petitioner was found

guilty of offences, inter alia under S.302 of the

Penal Code and he was sentenced to undergo

imprisonment for life.

2. The instant application is one under S.389 of

the Code of Criminal Procedure seeking suspension of

sentence and release of the petitioner on interim

bail, on medical grounds. Simultaneous with filing of

the appeal, the petitioner preferred another

Miscellaneous Application, vide Crl.M.A.No.2/2019,

seeking suspension of sentence on merits and release

of the petitioner on bail pending disposal of the

above Criminal Appeal.

3. Heard Sri.Rajesh Vijayan, learned counsel for

the petitioner and Sri.Alex M.Thombra, learned Public

Prosecutor. Perused the records.

Crl.MA 1/2022 in Crl.A 930/2019

4. Learned counsel for the petitioner argued for

suspension of sentence on merits, as also, on medical

grounds. Due to paucity of time, since the courts are

to close for Onam recess on 2.9.2022, we consider

Crl.M.A.No.1/2022 for interim bail. Crl.M.A No.2/2019

shall be posted after vacation for consideration on

merits.

5. In Crl.M.A No.1/2022, it is averred that the

petitioner is suffering from several diseases,

including severe hyper tension and varicosity,

rendering him fully laid up. He is not in a position

to move or work in the prison. No proper treatment is being extended to the petitioner. On such premise,

the petitioner seeks suspension of sentence and his

release on interim bail. Learned Public Prosecutor

has produced a report of the Superintendent, Central

Prison and Correctional Home, Viyyur, along with a

medical evaluation report made by the Assistant

Professor of General Medicine, Government Medical

College Hospital, Thrissur about the petitioner's

medical condition. The report of the Assistant

Professor indicates that the petitioner is suffering Crl.MA 1/2022 in Crl.A 930/2019

from Type 2 Diabetes Mellitus and Systemic

hypertension for the past 15 years and that he is on

medications. It is also indicated that he is on

treatment for varicose veins for the past 10 years.

The petitioner has skin changes of longstanding

varicose veins and swelling over distal ankle. He

also experiences pain over both legs on prolonged

standing. The clinical examination done on 24.8.2022

does not show any active medical complaints. It is

reported that his vitals are stable and that systemic

examination is within normal limits. The Doctor

opined that the petitioner needs to be on regular

medications and that the patient is clinically stable currently.

6. In answer to the report preferred by the

Assistant Professor, Government Medical College

Hospital, Thrissur, learned counsel for the

petitioner submitted that the report from the Doctor

attached to the Prison may also be called for, which

would clearly indicate that the petitioner is

completely bed-ridden and unable to move or to attend

for any work in the prison. According to the learned Crl.MA 1/2022 in Crl.A 930/2019

counsel, the petitioner requires specialised

treatment, failing which his condition is likely to

worsen. Learned counsel also expressed a fervent wish

of the petitioner to be with his family during Onam.

7. This submission has been opposed by the learned

Public Prosecutor pointing out that the petitioner is

an accused in as many as 7 other crimes in the Police

Stations at Palarivattam, Thrikkakara, Mala and

Kalamassery for relatively serious offences, like the

one under Ss.308, 394, 392 etc. of the Penal Code.

8. Having heard the rival contentions, we are of the opinion that the petitioner can be released on

interim bail for a short period of two weeks, so as

to enable his treatment for the diseases afore

referred. Going by the report of the Assistant

Professor of Govt. Medical College Hospital,

Thrissur, the petitioner is a known case of Type 2

Diabetes Mellitus along with systemic hypertension.

He is also suffering from severe varicosity, as could

be discerned from skin changes and swelling over

distal ankle. In such circumstances, we feel that the Crl.MA 1/2022 in Crl.A 930/2019

petitioner's request for specialised treatment is

only to be allowed, de hors the Assistant Professor's

report that the petitioner is stable now.

9. In the circumstances, this Criminal M.A is

allowed; the order of sentence is hereby suspended

for a period of two weeks and the petitioner is

directed to be released on interim bail for the said

period, subject to the following conditions:

(i) The petitioner shall be released on

bail on execution of a bond for Rs.50,000/-

(Rupees fifty thousand only), with two solvent

sureties, each for the like amount to the

satisfaction of the trial court;

(ii) The petitioner shall report before the

S.H.O, Mala twice in a week, namely all Mondays

and Saturdays commencing from 5.9.2022 during the

bail period.

(iii) On the date on which two weeks expires

from the date of his release, he shall report

before the Superintendent of the Central Prison

concerned at 10.00 a.m. Crl.MA 1/2022 in Crl.A 930/2019

(iv) He shall not involve in any offence while

on bail;

(v) If the conviction and sentence of the

petitioner/appellant is upheld or even modified,

the time during which he is so released shall be

excluded in computing the term of his sentence as

provided in Section 389(4) Cr.PC.