Jayaram K.S vs State Of Kerala
2023 Latest Caselaw 11662 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA,
                                 1945
                    CRL.MC NO. 9761 OF 2023
AGAINST THE ORDER/JUDGMENT LP 5/2018 OF JUDICIAL MAGISTRATE
                 OF FIRST CLASS - IV, ERNAKULAM
PETITIONER/S:

          JAYARAM K.S
          AGED 57 YEARS
          S/O B. SUJATHA, PRESENTLY RESIDING AT VYSHAKH,
          MANGAD P.O., KOLLAM, PIN - 690584
          BY ADV GIGIMON ISSAC


RESPONDENT/S:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:

          SRI HRITHWIK CS,PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   16.11.2023,   THE   COURT    ON    THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                        -2-
Crl.M.C No. 9761 of 2023



                               P.V.KUNHIKRISHNAN, J.
                              ======================================================

                                 Crl.M.C No. 9761 of 2023
                           =============================================================

                   Dated this the 16th day of November, 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 an accused in LP No.5 of 2018 on the

files of the Judicial First Class Magistrate Court-IV, Ernakulam. It is

a proceeding initiated under Section 138 of Negotiable Instruments

Act. The petitioner was not able to appear before the lower court and

the case is now included in the Long Pending Register.

3. The petitioner submit that the he is ready to surrender

before the jurisdictional court and if he surrender before the

jurisdictional court, jurisdictional court may remand him 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

Crl.M.C No. 9761 of 2023

to release the petitioner on bail and that is a matter to be decided by

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 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

Crl.M.C No. 9761 of 2023

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 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 two 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

Crl.M.C No. 9761 of 2023

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 petitioner to appear before the court

below, coercive proceedings pending against the petitioner

shall be kept in abeyance for a period of two weeks.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

Crl.M.C No. 9761 of 2023

APPENDIX OF CRL.MC 9761/2023

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY DR. NAIR'S HOSPITAL, ASHRAMAM, KOLLAM DATED 08.11.2023 Annexure A2 TRUE COPY OF THE MEDICAL CERTIFY ISSUED FROM DR. NAIR'S HOSPITAL, ASHRAMAM, KOLLAM DATED 01.12.2022 Annexure A3 TRUE COPY OF THE JUDGEMENT DATED 05.04.2023 IN C.C NO. 866/2015 OF JFCM COURT, MATTANCHERY Annexure A4 TRUE COPY OF THE FRONT PAGE OF THE PASS BOOK ISSUED FROM BANK OF BARODA, THIRUNELVELI DATED 16.07.2014 Annexure A5 TRUE COPY OF THE RELIEVING LETTER ISSUED BY "MELONIYA" A COMPANY AT COIMBATORE ISSUED TO THE PETITIONER DATED 04.02.2021 Annexure A6 TRUE COPY OF THE DEATH CERTIFICATE OF THE MOTHER OF THE PETITIONER DATED 14.05.2021 Annexure A7 TRUE COPY OF THE ORDER IN CRL. MC NO.2530/2022 DATED 19.04.2022