Kerala High Court
M.K.Abdul Azeez vs State Of Kerala
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 4TH DAY OF FEBRUARY 2014/15TH MAGHA, 1935
Crl.MC.No. 944 of 2014 ()
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CC.NO. 62/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, MANJERI
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PETITIONER/3RD ACCUSED :
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M.K.ABDUL AZEEZ
S/O.M.K.ALI, MANNILTHODI KURUKKAMPURATH HOUSE
KIZHUPARAMBA P.O., MALAPPURAM DISTRICT.
BY ADVS.SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, KOCHI-682 031.
BY PUBLIC PROSECUTOR SMT. S. HYMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 04-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
...2/-
Crl.MC.No. 944 of 2014 ()
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APPENDIX
PETITIONERS' ANNEXURES :
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ANNEXURE I- COPY OF THE ORDER DATED 13.01.2011 IN CRL.M.C.NO.35
OF 2011 OF THE SESSIONS COURT, MANJERI.
ANNEXURE II- COPY OF THE ORDER DATED 30.11.2013 IN CRL.M.P.
NO.1491 OF 2013 OF THE SESSIONS COURT, MANJERI.
ANNEXURE III- COPY OF THE DAIRY EXTRACT IN C.C.NO.62 OF 2011 OF THE
CHIEF JUDICIAL MAGISTRATE COURT, MANJERI.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
Mn
K. Ramakrishnan, J.
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Crl.M.C.No.944 of 2014
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Dated this, the 04th day of February, 2014.
O R D E R
This is an application filed by the 3rd accused in C.C.No.62/11 pending before the Chief Judicial Magistrate Court, Manjeri, against the order passed by the Sessions Judge, Manjeri in Crl.M.P.No.1491/2013 in Crl.M.C.No.35/2011 under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner is the 3rd accused in Crime No.5/2011 of Areakode Police Station in Kozhikode District. He along with others were charge sheeted alleging commission of offences under Section 406, 420 and 506
(i) read with Section 34 of Indian Penal Code. During the investigation stage, the petitioner and other accused were granted anticipatory bail by the Sessions Court, Manjeri, with a condition inter alia that the petitioner and other accused shall surrender their passport before the Chief Judicial Magistrate Court, Manjeri and if they have no passport, they should file an affidavit to that effect before that court. In compliance of the condition, the petitioner surrendered his passport before the Chief Judicial Magistrate Court, Manjeri on 17.01.2011 and Crl.M.C.No.944 of 2014 : 2 : thereafter, he was released on bail. Thereafter he filed Crl.M.P.No.784/11 before the Sessions Court, Manjeri for getting his passport released. The Sessions Court, by order dated 18.07.2011, directed the Chief Judicial Magistrate Court, Manjeri to release the passport of the petitioner and others for a period of 7 months and accordingly the same was released to them and thereafter he promptly surrendered the passport before that court. Now, he wants to visit Mecca to perform their Umra. So, he filed an application for that purpose. But the application was dismissed on the sole reason that final report has been filed and the case has been taken on file as C.C.No.62/11 and posted for examination of the witnesses. Aggrieved by the same, the present petition has been filed.
3. Heard the Counsel for the petitioner and the learned Public Prosecutor and also obtained a report from the concerned court regarding the present stage of the case.
4. The Counsel for the petitioner submitted that on earlier occasions, the passport was released for a period of 7 months and thereafter he has surrendered the same within time. But now he wants to go to Mecca for performing Umra for which the passport is required and he wants the passport for a period of 6 months. The application was rejected by the Sessions Judge on the ground that the trial of the case has Crl.M.C.No.944 of 2014 : 3 : already been started. The Counsel for the petitioner also submitted that since the identity of the petitioner is not in dispute, there is no impediment for proceeding with the examination of the witnesses even in his absence.
5. It is an admitted fact that the petitioner who is one of the accused in the above case was granted anticipatory bail by the Sessions Judge, Manjeri with conditions inter alia to surrender his passport before the Chief Judicial Magistrate Court, Manjeri where the case was pending. It is also an admitted fact that investigation of the case is over and charge sheet has been filed and the case was taken on file as C.C.No.62/11 on the file of the Chief Judicial Magistrate Court, Manjeri. It is seen from the report of the Chief Judicial Magistrate that the trial of the case has already been started and one mahazar witness was examined as PW1 on 10.09.2013 and thereafter summons were issued to Cws.1 and others on 05.11.2013, complainant was present, both defence Counsel and the Deputy Director of Prosecution prayed for adjournment on the ground that there is a possibility of settlement between the parties. Later, it was reported that the matter was not settled. But when the Chief Judicial Magistrate insisted examination of the witnesses, it is mentioned in the report that the Deputy Director of Prosecution did not prepare Crl.M.C.No.944 of 2014 : 4 : to examine CW1 and thereafter Cws.1 to 3 have not turned up. So, if 6 months time is granted, he is able to dispose of the case itself.
6. Considering the circumstances, I feel that there will be some delay in disposing the case as presence of Cws. 1 and 2 has to be forwarded for that purpose. However, the request for return of passport is sought only for the purpose of going to Mecca to perform Umra for which I do not think 6 months time is required as submitted by the learned Counsel for the petitioner. Further, on the earlier occasions also, when such request was made, that was granted by the Sessions Judge, and directed to release the passport for a period of 7 months and before the expiry of 7 months period, it was returned by the petitioner. So, considering the circumstances, I feel that the petition can be disposed of by giving a direction to the Chief Judicial Magistrate to return the passport to the petitioner for a period of 1 month on executing a bond for Rs.10,000/- with two solvent sureties and also filing an undertaking that he will surrender the passport within that time and also directing the court below to dispose of the case within 6 months after the expiry of 1 month period. So the petition is disposed of with the following conditions: Crl.M.C.No.944 of 2014 : 5 :
1. The Chief Judicial Magistrate, Manjeri is directed to return the passport to the petitioner for a period of 1 month on condition that the petitioner shall execute a bond for Rs.10,000/-
with two solvent sureties to the satisfaction of the magistrate and also file an undertaking that he will return the passport within one month from the date of release of the passport.
2. Chief Judicial Magistrate is directed to dispose of the case within a period of 6 months from the date of receipt of this order.
3. If the witnesses are present during the period of one month during which petitioner is permitted to go to Mecca, the magistrate is at liberty to proceed with the examination of the witnesses in his absence on getting an application from the Counsel for the petitioner/accused that the examination can be proceeded with even in his absence as provided under Section 317 of Code of Criminal Procedure. The petitioner is also directed to instruct his counsel to file such an application to avoid delay in proceeding with the case in his absence.
4. If the petitioner did not surrender his passport as directed above and did not co-operate with the trial of the case, the magistrate is at liberty to proceed against the petitioner in accordance with the law.
With the above direction, the petition is disposed of.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge