Thampan C vs State Of Kerala
2023 Latest Caselaw 10657 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                    CRL.MC NO. 8495 OF 2023
      AGAINST THE ORDER/JUDGMENT CP 1/2023 OF JUDICIAL
          MAGISTRATE OF FIRST CLASS COURT, KAYAMKULAM


PETITIONER(S)/ACCUSED:

            THAMPAN C
            AGED 63 YEARS, S/O CHELLAPPAN, VETTUTHARAYIL,
            KEERIKKAD THEKK, KAYAMKULAM, PIN - 690502
            BY ADVS.
            BASIL CHANDY VAVACHAN
            CHARUTHA BHAIJU
            GEORGIE SIMON
            CHANDHANA BHAIJU
            BASIL SAJAN
            FATHIM NAVAS
            BASIL SCARIA


RESPONDENT(S)/COMPLAINANT:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, PIN - 682031

BY ADV.

            SRI. HRITCWICK CS    PP



      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   16.10.2023,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL. M.C. NO.8495 OF 2023


                                   2



           P.V.KUNHIKRISHNAN, J.
           --------------------------------
          Crl.M.C. No. 8495 of 2023
    ----------------------------------------------
  Dated this the 16th day of October, 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 C.P.

No.1/2023 on the file of Judicial First Class

Magistrate Court, Kayamkulam arising from Crime

No.55/2021 of Excise Range Office, Kayamkulam.

3. The learned counsel for the petitioner

submitted that the petitioner is ready to surrender

before the lower court but the petitioner apprehend

that if he surrender before the lower court, the

lower court will remand him without considering his CRL. M.C. NO.8495 OF 2023

bail application because a warrant is pending.

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.

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 CRL. M.C. NO.8495 OF 2023

(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:

"8. 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 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 CRL. M.C. NO.8495 OF 2023

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 shall

consider the same and pass appropriate CRL. M.C. NO.8495 OF 2023

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 nvj JUDGE CRL. M.C. NO.8495 OF 2023

APPENDIX OF CRL.MC 8495/2023

PETITIONER ANNEXURES ANNEXURE 1 THE TRUE COPY OF THE CHARGE SHEET IN CRIME NO. 55/2021 OF EXCISE RANGE OFFICE, KAYAMKULAM ANNEXURE 2 THE TRUE COPY OF DAILY STATUS DATED 21/08/2023 IN THE COURT OF JUDICIAL FIRST-CLASS MAGISTRATE, KAYAMKULAM ANNEXURE 3 THE TRUE COPY OF DAILY STATUS DATED 05/10/2023 IN THE COURT OF JUDICIAL FIRST-CLASS MAGISTRATE, KAYAMKULAM Annexure 4 THE TRUE COPY OF MEDICAL CERTIFICATE OF THE PETITIONER

RESPONDENTS EXHIBITS :NIL

//TRUE COPY//

PA TO JUDGE