Shaiju C.G vs Sree Gokulam Chit And Finance Company ...
2023 Latest Caselaw 12727 Ker

Kerala High Court

Shaiju C.G vs Sree Gokulam Chit And Finance Company ... on 8 December, 2023

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
                  CRL.MC NO. 10634 OF 2023
 AGAINST THE ORDER/JUDGMENT ST 23/2022 OF JUDICIAL MAGISTRATE
                OF FIRST CLASS -II,THODUPUZHA


PETITIONER/ACCUSED:

          SHAIJU C.G.
          AGED 42 YEARS
          S/O.GOPINATHAN, CHOORAKUZHIYIL HOUSE,
          RAJAMUDY P.O, VATHIKUDY VILLAGE,
          IDUKKI TALUK, IDUKKI DISTRICT,
          PIN - 685604
          BY ADVS.
          SUBI K.
          ARUN JOSE THOMAS


RESPONDENT/COMPLAINANT & STATE:

    1     SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD.
          ARCOT ROAD, KODAMBAKKAM, CHENNAI-600024,
          REP.BY POWER OF ATTORNEY HOLDER JOMY.M.C,
          S/O.CHACKO, AGED 45 YEARS,
          (SENIOR BUSINESS MANAGER),
          THODUPUZHA BRANCH, IDUKKI DISTRICT,
          PIN - 685581
    2     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          PIN - 682031


          SRI.M.P.PRASANTH, PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO.10634 OF 2023

                                    2

                      P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                    Crl.M.C. No.10634 of 2023
               ----------------------------------------------
            Dated this the 8th day of December, 2023


                              ORDER

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 petitioner is the accused in S.T. No. 23/2022 on

the file of the Judicial First Class Magistrate Court- II,

Thodupuzha. It is a prosecution initiated under Sections 138

and 142 of the Negotiable Instruments Act, 1881.

3. It is submitted that a warrant is pending against the

petitioner and therefore the petitioner apprehend that he will

be remanded if he surrender before the court without

considering his 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 petitioner on bail

and that is a matter to be decided by the trial court. CRL.MC NO.10634 OF 2023

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 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 CRL.MC NO.10634 OF 2023

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 petitioner 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 petitioner shall surrender before the jurisdictional court within three weeks from today. If an application for bail with advance copy to the prosecutor concerned is filed at the time of surrender by the petitioner, the jurisdictional court shall consider the same and pass appropriate orders in accordance with law, ideally on the date of surrender itself.

CRL.MC NO.10634 OF 2023

2) In order to enable the petitioner to appear before the court below, coercive proceedings pending against the petitioner shall be kept in abeyance for a period of three weeks.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

sms CRL.MC NO.10634 OF 2023

APPENDIX OF CRL.MC 10634/2023

PETITIONER ANNEXURES Annexure- 1 COPY OF THE COMPLAINT AGAINST PETITIONER, FILED BY THE 1ST RESPONDENT, BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, THODUPUZHA