Kerala High Court
Madukoluchibuzor Samson vs State Of Kerala on 18 December, 2020
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 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
Crl.MC.No.5300 OF 2020(B)
AGAINST THE ORDER IN CRMP 3386/2019 DATED 04-04-2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,CHAVAKKAD
CRIME NO.608/2018 OF Guruvayoor Police Station , Thrissur
PETITIONERS:
1 MADUKOLUCHIBUZOR SAMSON
AGED 30 YEARS
S/O. GODFREY ARINZER MDKOLU AND BRIJET MADIKOLU,
ANANBRA STATE, ONITSHA DISTRICT, AMANUKE TOWN
VILLAGE, AKWA NORTH, NIGERIA.
2 CHRISTIAN OBIJI ABUCHI,
AGED 37 YEARS,S/O. COLNUS,
LATE OWERRI (TOWN), MBANO IMO STATE, NIGERIA.
BY ADVS.
SRI.ADITHYA RAJEEV
SHRI. GIRISH KUMAR M S
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, KOCHI 682 031.
ADDL.RESPONDENTS 2 & 3 ARE IMPLEADED
2 THE UNION OF INDIA
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
CENTRAL SECRETARIAT, NEW DELHI-110001.
3 THE FOREIGN REGIONAL REGISTRATION OFFICER (FRRO)
COCHIN INTERNATIONAL AIRPORT
2ND FLOOR, AIRLINES BUILDING,
NEDUMBASSERY- PIN-683111
IMPLEADED AS ADDITIONAL R2 & R3 AS PER ORDER DTD
4.12.2020 IN CRL.MA 3/2020 IN CRL MC 5300/2020.
R2-3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.AJITH MURALI, PP
Crl.M.C.No.5300 of 2020 2
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.5300 of 2020 3
P.V.KUNHIKRISHNAN, J
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Crl.M.C.No.5300 of 2020
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Dated this the 18th day of December, 2020
ORDER
The petitioners are accused Nos.7 and 8 in Crime No.608 of 2018 of Guruvayur Temple Police Station. The above case is registered against the petitioners and others alleging offences punishable under Sections 420, 465, 468, 471 r/w Section 34 IPC. Petitioners are Nigerian Citizens.
2. The petitioners were arrested in connection with the above case on 1.2.2019. They are in custody from that date onwards. The petitioners and 2 others filed an application before the learned Magistrate for getting statutory bail under Section 167(2) Cr.P.C. That petition was allowed by the learned Magistrate as per order dated 4.4.2019 in MP No.3386 of 2019 in Crime No.608 of 2018.
3. This Crl.M.C is filed by the petitioners with a prayer Crl.M.C.No.5300 of 2020 4 that the condition in Annexure-II order to the effect that the petitioners shall surrender their passport may be lifted. According to the petitioners, their passport is irrecoverably lost.
4. When this bail application came up for consideration, this Court directed the petitioners to implead Union of India and the Foreign Regional Registration Officer. Accordingly, a petition was filed and that petition was allowed and they were impleaded as additional respondent nos.2 and 3. The Assistant Solicitor General appeared for respondent Nos. 2 and 3.
5. Heard the counsel for the petitioners, the Assistant Solicitor General and the Public Prosecutor.
6. The counsel for the petitioner submitted that there is no passport to the petitioners. They lost their passport. The petitioners are in custody for about 650 days. Since there is a condition in Annexure-II order that the petitioners should produce the passport, the learned Magistrate is not releasing the petitioners. According to the petitioners, their passport is irrecoverably lost.
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7. The Assistant Solicitor General filed a statement. In the statement it is stated that the condition of surrendering passport is necessary so as to ensure that the accused does not flee from the country. It is also stated that the petitioners may not be allowed to have free movement across India and hence accused may be kept in detention centres till the completion of the trial. The ASGI produced a copy of the Model Detention Centre Manual issued by the Ministry of Home Affairs as Annexure-R2(d). Moreover, as per Annexure-R2(c), this Court directed the State Government to create detention centres. That is an order passed on 5.10.2015. The relevant portion of the order of this Court in Annexure-R2(c) is extracted hereunder:
"The Additional Chief Secretary, Home and Vigilance Department, has reported that any detention centres/holding centres have not yet been set up for keeping Bangladeshi Nationals, who are found staying in the State without valid travel documents. It is a pity that the Government has not so far cared to establish such detention centres/holding centres in the State.
2. The learned counsel for the petitioner has pointed out that in all other States in India, except the State of Kerala, such detention Crl.M.C.No.5300 of 2020 6 centers/holding centres have already been established. The Government shall look into the matter and do the needful at the earliest."
8. On a perusal of Annexure-R2(a) it is clear that even now no detention centres are created by the State Government. I again say that this is a sorry state of affairs. This Court directed in 2015 to do the needful. Now we are in 2020. Even now nothing is done by the State Government. I direct the Additional Chief Secretary, Home Affairs, State of Kerala to do the needful in this regard, within 6 months and file a compliance report before the Registrar General of this Court.
9. It is a fact that the petitioners are continuing in jail indefinitely. In the statement given by the ASGI, it is stated that if a portion of the Viyyur jail is converted as a temporary detention centre, the Union of India has no objection in shifting the petitioners to the temporary detention centre which will follow all the guidelines in Ext R2(d). The counsel for the petitioner submitted that as far as the other accused is concerned, the learned Magistrate already obtained a report from FRRO in this regard. Therefore, in the facts and Crl.M.C.No.5300 of 2020 7 circumstances of the case, I think the condition to produce the passport in Annexure-2 order can be lifted and the learned Magistrate can direct the petitioners to be released once the temporary detention centre is created in accordance with Annexure-R2(d) guidelines. I also make it clear that if any residence address is given by the petitioners and the same can be treated as a detention centre, the learned Magistrate can take such a course also if necessary. But before taking such a course, the learned Magistrate will get definite instructions from FRRO and from the State Government.
Therefore, this Crl.M.C is disposed of with following directions.
1. Condition in Annexure-2 order to the effect that the petitioners shall surrender their passport is lifted.
2. The petitioners shall be released by the learned Magistrate based on Annexure-2 order, only after a place is earmarked as detention centre as provided in Annexure-R2(d) or any Crl.M.C.No.5300 of 2020 8 other place which can be treated as temporary detention centre, with the consent of the State Government and Union of India, which can also be a residential house if any provided by the petitioners.
Registry will forward a copy of this order to the Additional Chief Secretary, Home Affairs, State of Kerala for complying the directions in Paragraph 8 of this order.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE cms Hand over.
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APPENDIX PETITIONERS EXHIBITS:
ANNEXURE 1 A TRUE COPY OF THE FIRST INFORMATION REPROT DATED 17.12.2018 IN CRIME NO. 608/2018 OF THE GURUVAYOOR TEMPLE POLICE STATION, THRISSUR DISTRICT.
ANNEXURE II A TRUE COPY OF THE ORDER DATED 04.04.209 IN MP NO. 3386 OF 2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE CHAVAKKAD.
ANNEXURE III A TRUE COPY OF THE ORDER DATED 08.08.2019 IN M.P. NO. 5667/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD.
ANNEXURE IV TRUE COPY OF THE ORDER DATED 15.10.2019 IN CRL.M.C. NO. 1742 OF 2019 OF THE SESSIONS COURT, THRISSUR.
ANNEXURE V A TRUE COPY OF THE ORDER DATED 04.02.2020 IN CRL.M.C. NO. 163 OF 2020 OF THIS HONBLE COURT.
ANNEXURE VI A TRUE COPY OF THE DETENTION ORDER DATED 05.03.2020 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE VII A TRUE COPY OF THE INTERIM ORDER DATED 25.05.2020 IN WPC NO. 9688 OF 2020 OF THIS HONBLE COURT.
RESPONDENTS EXTS Crl.M.C.No.5300 of 2020 10 ANN.R2(A) COPY OF REPORT OF INVESTIGATING OFFICER DTD 8.12.2020 REGARDING THE PRESENT STATUS OF INVESTIGATION ADDRESSED TO FRRO ANN.R2(B) COPY OF JUDGMENT IN CRL.P 200595 OF 2020 BEFORE HIGH COURT OF KARNATAKA DTD 4.9.2020 ANN.R2(C) COPY OF THE JUDGMENT IN CRL.M.C.5302 OF 2015 DTD 5.10.2015 ANN.R2(D) COPY OF THE MODEL DETENTION MANUAL ISSUED BY MINISTRY OF HOME AFFAIRS.
cms /True copy/ P.S.TO JUDGE