Kerala High Court
Ambili vs State Of Kerala on 29 March, 2023
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Wednesday, the 29th day of March 2023 / 8th Chaithra, 1945
CRL.M.APPL.NO.1/2022 IN CRL.A NO. 545 OF 2022
SC 599/2015 OF THE ADDITIONAL SESSIONS COURT, IRINJALAKUDA
PETITIONER/APPELLANT/ACCUSED:
AMBILI ,AGED 34 YEARS ,W/O. JITHEESH PUTHUPARAMBIL HOUSE,PULLUR
URAKAM DESOM, PULLUR VILLAGE,THRISSUR, - 680683
RESPONDENT/RESPONDENT/STATE:
THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the
petitioner/appellant by judgement dated 17.05.2022 in S.C.No.599/2015 of
the Additional Sessions Court , Irinjalakuda , in the interest of justice.
This Application again coming on for orders upon perusing the
application and this court's orders dated 27.01.2023 and 07.12.2022
therein and this court's order dated 20.10.2022 in Crl.M.A.2/2022 and upon
hearing the arguments of M/S. SANJANA RACHEL JOSE, P.K.VARGHESE,
M.T.SAMEER, P.S.ANISHAD, K.R.ARUN KRISHNAN, JERRY MATHEW, BIJU KUMAR,
REGHU SREEDHARAN, Advocates for the petitioner and of the PUBLIC
PROSECUTOR for the respondent, the court passed the following:
P.T.O
Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
1
ALEXANDER THOMAS & C.S.SUDHA, JJ.
==================
Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
(Arising out of the judgment dated 17.05.2022 in SC No.599/2015 of the Additional
Sessions Court, Irinjalakuda)
==================
Dated this the 29th day of March, 2023
ORDER
This is an application for suspension of impugned sentence involved in this case. Earlier we have passed a detailed order dated 20.10.2022 on Crl.MA No.2/2022 in this Crl.Appeal, filed by the applicant/accused, whereby she was granted interim bail on short term basis for the reasons stated therein. The said order dated 20.10.2022 rendered by this Court on Crl.MA No.2/2022 in this Criminal Appeal No.545/2022 reads as follows:
"This is an application for grant of interim bail to the applicant/appellant/accused for a period of one month.
2. Heard Sri.P.K.Varghese, learned counsel appearing for the applicant/appellant/sole accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the sole respondent-State of Kerala. The applicant / appellant / sole accused has been convicted as per the impugned judgment dated 17.05.2022 in Sessions Case, SC No. 599/2015 rendered by the First Additional Sessions Court, Irinjalakuda, Thrissur District, for the offences as per Section 302 and 309 of the IPC. The prosecution case against the accused is that due to mental agony caused by the conduct of the accused's husband in maintaining an illicit relationship with another woman Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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in the neighborhood, the accused lady had jumped into the well along with her two children, (a minor daughter aged 5 ½ years and a minor son aged 2 ½ years, both born in the marital relationship of the accused with her husband) to commit suicide. The applicant has been convicted of the above offences and was sentenced to undergo life imprisonment. After conviction and sentence, the Sessions Judge has considered the case in detail as to the applicability of Rule 131 of the Criminal Rules of Practice. A reference is to be made with the Government in the case of infanticide, wherein it is stipulated that in all cases, where women are convicted for the murder of their infant children, a reference shall be made through the High Court to the Government with an expression by the Sessions Judge of his opinion as to the propriety or otherwise of reducing the sentence etc.
3. After scanning the case law on the subject and also after considering the extenuating facts and circumstances, the Sessions Judge has also held that the lady accused requires sympathetic and compassionate treatment by the jail authorities etc.
4. In the present application, it is urged that the applicant's mother is aged 66 years and is suffering from various old age ailments and that she is now diagnosed with adjustment disorder as evident from Annexure 1 Medical Certificate dated 05.10.2022 issued by the Psychiatrist concerned. It is urged by the counsel for the applicant that the conviction and sentence imposed on the applicant and her sudden absence has created lot of mental pressure on her mother. Further, it is the case of the applicant that the reference made under Rule 131 of Criminal Rules of Practice is pending consideration before the Government. The learned Counsel for applicant would also invite our attention to various case laws on the point in cases as in K.E.Thankamani Vs. State of Kerala (1999 Criminal Law Journal 487) (AIR 1999 SC 1513) etc, which has dealt with the applicability of Rule 131 of Criminal Rules of Practice. In K.E.Thankamani's case supra, wherein the Apex Court noted that the Sessions Court and the High Court have not noticed the provisions contained in Rule 131 of the Criminal Rules of Practice and accordingly, the Apex Court has granted Special Leave and disposed of the Criminal Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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Appeal with a recommendation to the Government to consider the matter of review of sentence of the applicant therein, keeping in view, the facts and circumstances of the case. The age of infants is not specifically and clearly defined in the IPC. However, provisions in the prevention of female infanticide bill, 2019 has conceived that a girl infant as to mean a girl child up to the age of 10 years. In the instant case, the children at the time of their death, were aged 5 ½ years and 2 ½ years respectively. The reference under Section 131 of Criminal Rules of Practice is now said to be pending before the State Government. Learned Prosecutor submits that he could not secure precise instructions on those aspects and some more time will be required regarding that. Having noted the facts and circumstances and also the extenuating circumstances explained in detail in the impugned judgment rendered by the Sessions Court, we are of the view that the plea for interim bail for a period of one month could be granted. Accordingly, it is ordered that the applicant/appellant/accused shall be released on interim bail for a period of one month subject to the following conditions.
a. The applicant shall furnish bond for Rs.50,000/- (Rupees Fifty Thousand Only) and two solvent sureties for the like sum, both to the satisfaction of the Sessions Court concerned.
b. The applicant shall not involve
in any offence while on bail.
c. The local SHO of the Police
Station, within whose limits, the applicant's residence is situated will be at liberty to depute a woman Civil Police Officer in civil dress, to the residence of the applicant and her mother, once in a week to ascertain her whereabouts and also about her well being.
5. The pendency of the abovesaid interim- bail period will be for one month from the date of release. Further it is ordered that the abovesaid period when the applicant is released on interim bail as above, the applicant is released on interim bail as above will stand excluded for the purpose of computing the period of sentence as envisaged in Section 389(4) of Cr.PC, in case the impugned sentence involved in this case is either fully or partly upheld by this Court in this appeal. Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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With these observations and directions, the above Criminal Miscellaneous Application will stand disposed of. "
2. Later, we passed order dated 18.11.2022 in the instant Crl.MA No.1/2022 in this Crl.Appeal, which reads as follows:
"This is an application for suspension of impugned sentence awarded in this case.
2. Heard both sides. The applicant/appellant/sole accused has been convicted as per the impugned judgment dated 17.05.2022 in SC No.599/2015 rendered by the First Additional Sessions Court, Irinjalakuda, Thrissur for the offences as per Section 302 & 309 of the IPC and has been awarded life sentence. We have already passed an order on 20.10.2022 on Crl.MA No.2/2022 in this Crl.Appeal, granting interim bail to the applicant for a period of one month in view of the various aspects mentioned in that order. Then we have requested the learned Prosecutor to get instructions from the competent authority of the State Government of the Home Department as to whether reference made by the Sessions Court, Irinjalakuda, Thrissur, in terms of Rule 131 of the Criminal Rules of Practice is still pending consideration before the State Government and such other details. Learned Prosecutor would submit on the basis of instructions that it appears that the competent authority of the State Government in the Home Department has not received any reference request under Rule 131 of the Criminal Rules of Practice forwarded by this Court and as observed by the Sessions Court in the impugned judgment. The Registry will ascertain as to whether the reference matter under Rule 131 of the Criminal Rules of Practice have been forwarded by this Court to the Government in the Home Department in view of the order passed by the Sessions Court, on 17.05.2022, which appears at page 82 which forms part of internal pages 75 to 77 of the impugned judgment (see pages 82 to 84 of the paper book of this Criminal Appeal), and if so, when and if not, the reasons for the same. Hence we are now constrained Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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to adjourn the case by two weeks.
3. Accordingly it is ordered that the interim bail granted by this Court to the applicant/accused in this case as per order dated 20.10.2022 on Crl.MA No.2/2022 in Crl.Appeal No.545/2022 will stand extended by a further period of one month."
3. We have passed order dated 07.12.2022 on the instant Crl.MA No.1/2022 which reads as follows:
"Initially, we had passed order dated 20.10.2022 in Crl.M.A.No.2 of 2022 in this Criminal Appeal. Later, we have passed a separate order dated 18.11.2022 in Crl.M.A.No.1 of 2022 in this Criminal Appeal, which reads as follows:
"This is an application for suspension of impugned sentence awarded in this case."
2. Heard both sides. The applicant/appellant/sole accused has been convicted as per the impugned judgment dated 17.05.2022 in SC No.599/2015 rendered by the First Additional Sessions Court, Irinjalakuda, Thrissur for the offences as per Section 302 & 309 of the IPC and has been awarded life sentence. We have already passed an order on 20.10.2022 on Crl.MA No.2/2022 in this Crl.Appeal, granting interim bail to the applicant for a period of one month in view of the various aspects mentioned in that order. Then we have requested the learned Prosecutor to get instructions from the competent authority of the State Government of the Home Department as to whether reference made by the Sessions Court, Irinjalakuda, Thrissur, in terms of Rule 131 of the Criminal Rules of Practice is still pending consideration before the State Government and such other details. Learned Prosecutor would submit on the Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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basis of instructions that it appears that the competent authority of the State Government in the Home Department has not received any reference request under Rule 131 of the Criminal Rules of Practice forwarded by this Court and as observed by the Sessions Court in the impugned judgment. The Registry will ascertain as to whether the reference matter under Rule 131 of the Criminal Rules of Practice have been forwarded by this Court to the Government in the Home Department in view of the order passed by the Sessions Court, on 17.05.2022, which appears at page 82 which forms part of internal pages 75 to 77 of the impugned judgment (see pages 82 to 84 of the paper book of this Criminal Appeal), and if so, when and if not, the reasons for the same. Hence we are now constrained to adjourn the case by two weeks.
3. Accordingly it is ordered that the interim bail granted by this Court to the applicant/accused in this case as per order dated 20.10.2022 on Crl.MA No.2/2022 in Crl.Appeal No.545/2022 will stand extended by a further period of one month. List this Crl.MA on 07.12.2022."
2. Now, the Registry has informed us that the Registrar General of this Court, as per letter No.DI-
8/32258/2022 dated 29.10.2022, has forwarded to the Chief Secretary to the Government of Kerala, Home (B) Department, copies of the judgment in the instant Sessions Case, S.C.No.599 of 2015 on the file of the Additional Sessions Court, Irinjalakuda, as well as the opinion of the Sessions Judge, expressed in the judgment in the above Sessions Case, and the Police Report received from the Additional Sessions Court, Irinjalakuda, for further necessary action by the Government, in terms of Rule 131 of the Criminal Rules of Practice. The above said letter dated 29.10.2022 issued by the Registrar General of this Court, addressed to the Chief Secretary to Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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Government, reads as follows:
"From The Registrar General To The Chief Secretary, Government of Kerala, Home (B) department, Government Secretariat, Thiruvananthapuram.
Sir, Sub: Reference to the Government under Rule 131 of Criminal Rules of Practice- Conviction and sentence for infanticide in SC No.599/2015 of Additional Sessions Court, Irinjalakuda - forwarding of - reg.
Ref: 1. Judgment dated 17.05.2022 in S.C.No.599/2015. 2. Letter dated 20.05.2022 from Addl.District & Sessions Judge/MACT, Irinjalakuda.
As per the Judgment Dated 17/05/2022 in S.C.No.599/2015 the Additional Sessions Court, Irinjalakuda had convicted and sentenced the accused therein for the offence under section 302 and 309 of Indian Penal Code. The convict is the mother of the deceased children. Going by Rule 131 of Criminal Rules of Practice when women are convicted for the murder of their own child/children, there shall be a reference to the Government for remission of sentence through the Honourable High Court. So I am forwarding herewith the judgment in SC 599/15, readable copies of deposition, copies of exhibits, the opinion of the Judge expressed in the judgment and police report received from Addl.District & Sessions Judge/MACT, Irinjalakuda for further necessary action.
Yours faithfully, Sd/-
P.Krishna Kumar Registrar General"
3. The competent authority-State Government, Home (B) Department will immediately furnish instructions to the learned Prosecutor, as to whether the request for reference, under Rule 131 of the Criminal Rules of Practice, has been received in this case and as to the time that may be taken for the Government to consider and take a decision thereon. We make it clear that the pendency of this Criminal Appeal will not, in any manner, preclude the competent authority - State Government, Home (B) Department from considering the matter referred to Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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the Government under Rule 131 of the Criminal Rules of Practice, pursuant to the impugned judgment of the Sessions Court.
4. For the time being, it is ordered, in the interest of justice, that the interim bail granted by this Court to the applicant/accused in this case and as extended by a further period of one month, as per order dated 18.11.2022 in Crl.M.A.No.1 of 2022 will stand extended by a further period up to 31.01.2023."
4. Still further, we have passed order dated 27.01.2023 in the instant Crl.MA No.1/2022 which reads as follows:
"Read this order in continuation of the previous order rendered by this Court on 07/12/2022.
2. Pursuant to our directions issued on 07/12/2022, the learned Public Prosecutor has now secured instructions and it is submitted by the learned Public Prosecutor that the reference under Rule 131 of the Criminal Rules of Practice is now pending consideration of the competent authority State Government and the Law Department has already given its opinion and the matter has been placed before the competent authority of the State Government, the Home Department and thereafter it is to be placed before the Council of Ministers and this process may require at least two months' time. In view of this submission, we are inclined to adjourn the case. The competent authority, the State Government, may bestow their anxious consideration to the facts and circumstances of this case and make a considered decision on the reference made in this case, under Rule 131 of the Criminal Rules of Practice and may take a decision in the matter without much delay. We are not inclined to fix any time frame for the same as many formalities may be involved. However, it is ordered that the interim bail granted to the applicant will stand extended till 31/03/2023."
5. Now the learned Prosecutor appearing for the respondent Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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State would submit on the basis of instructions that the Government requires more time to examine the issue of exercise of discretion, as conceived in Rule 131 of the Criminal Rules of Practice and the matter is engaging the serious attention of the Government and inputs and advise will have to be received from various quarters and hence, more time is required. The abovesaid submissions have been made by the learned Prosecutor on the basis of instructions of the competent authority of the State Government in the Home (B) Department and on the basis of the written instructions furnished to him as per letter No.B1/359/2022/Home, dated 27.01.2023. Moreover, the matters relating to exercise of discretion under Rule 131 of the Criminal Rules of Practice is within the province of the State Government.
6. After hearing both sides, we are of the view that the impugned sentence involved in this case could be suspended and the petitioner could be released on interim bail on that basis. Based on the interim bail, earlier granted, the applicant is on interim bail till 31.03.2023. So, it is ordered that the interim bail earlier granted which is current up to 31.03.2023 will stand extended until the disposal of the appeal. The suspension of the impugned sentence and the grant of interim bail will be subject to the very same conditions as Crl.MA No.1/2022 in Crl.Appeal No.545 of 2022
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ordered in paragraph no.4 on page 4 of the aforesaid order dated 20.10.2022 rendered by this Court on Crl.MA No.2/2022 in this Criminal Appeal.
With these observations and directions, the above Crl.
Miscellaneous Application will stand disposed of.
sd/-
ALEXANDER THOMAS, JUDGE sd/-
C.S.SUDHA, JUDGE Nsd 29-03-2023 /True Copy/ Assistant Registrar