Unni George vs State Of Kerala
2023 Latest Caselaw 10839 Ker

Citation : 2023 Latest Caselaw 10839 Ker
Judgement Date : 19 October, 2023

Kerala High Court

Unni George vs State Of Kerala on 19 October, 2023

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
                      CRL.MC NO. 8666 OF 2023
AGAINST THE ORDER/JUDGMENT CC 4580/2017 OF JUDL.M.F.C.-I,ERNAKULAM
PETITIONER/ACCUSED:

          UNNI GEORGE
          AGED 44 YEARS
          S/O. PLAMTHOTTAM GEORGE, PLAMTHOTTAM HOUSE,
          ARUVITHARA P.O., KOTTAYAM DISTRICT, PIN - 686122
          BY ADVS.
          GEORGE MATHEW
          M.D.SASIKUMARAN
          SUNIL KUMAR A.G
          GEORGE K.V.
          MATHEW K.T.
          MEDHA B.S.
          STEPHY K REGI


RESPONDENTS/STATE & COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
          ERNAKULAM, KOCHI, PIN - 682031
    2     GIGI CHERIAN
          AGED 48 YEARS
          S/O. CHERIAN THAMARAKUDI HOUSE, PANIPRA P.O.,
          KOTHAMANGALAM ERNAKULAM DISTRICT, PIN - 686692
OTHER PRESENT:

          SRI.RENJITH.T.R, PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 8666 OF 2023                 2




                        P.V.KUNHIKRISHNAN, J.
                        --------------------------------
                       Crl.M.C. No. 8666 of 2023
                 ----------------------------------------------
                Dated this the 19th 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 CC No.4580/2017 on the file

of the Judicial First Class Magistrate (Negotiable Instruments) Court,

Ernakulam. It is a prosecution initiated under Section 138 of the

Negotiable Instruments Act. Now a warrant is pending against the

petitioner.

3. The petitioner submits that the petitioner is ready to

surrender before the jurisdictional court and if he surrender before

the jurisdictional court, jurisdictional court may remand him without

considering their 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.

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 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 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