Partly allowed

Fasil v. State of Kerala

Kerala HC12 Jun 2014Crl.MC/2142/2014

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a miscellaneous petition where the accused challenged the rejection of his passport release application. The court upheld the lower court's order but directed the trial judge to conclude proceedings within five months.

What did the court decide?

Situated trial within five months; passport order upheld; future passport application to be considered post-evidence.

Fasil Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936

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Crl.MC.No. 2142 of 2014 ()

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CMP.NO.594/2013 IN SC.NO.472/2013 OF ASST. SESSIONS COURT, KANNUR CRIME NO. 231/2009 OF KANNAPURAM POLICE STATION , KANNUR DISTRICT

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PETITIONER/ACCUSED NO.2:

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FASIL, S/O.UMMER KUTTY,AGED 20 YEARS, CHODON PARAMBATH KADAVATHPURYIL, THEKKUMBAD, MATTOOL AMSOM, KANNUR DISTRICT-670 301.

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BY ADV. SRI.I.V.PRAMOD

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.

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BY PUBLIC PROSECUTOR SMT. S.HYMA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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CRMC.NO.2142/2014

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEX A1 CERTIFIED COPY OF THE ORDER IN CMP.NO.594/2013 IN SC.NO.472/2013 DATED 29/1/2014

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

K. RAMAKRISHNAN, J.

Criminal M.C. No.2142 of 2014

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Dated this the 12^th day of June, 2014

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O R D E R

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This criminal miscellaneous case is filed by the petitioner challenging the order passed by the Assistant Sessions Judge, Kannur, in C.M.P.No.594/2013 in S.C.No.472/2013 pending before that Court, under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code').

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It is alleged in the petition that, he was shown as 2^nd accused in S.C.No.472/2013 on the file of Assistant Sessions Court, Kannur and it arose from Crime No.231/2009 of Kannapuram police station, alleging offences under Sections 143, 147, 148, 341, 332, 353, 506(i) and 308 read with Section 149 of the Indian Penal Code and Section 3(1) of PDPP Act. According to the petitioner, he did not participate in the incident and his brother was stopped by the police and he jumped into the nearby river

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Crl. M.C. No.2142 of 2014

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and escaped. The police party did not allow him to come to the shore and pelted stone against him and he died due to drowning and thereafter the police party left the place. The body was recovered at 4.00 p.m., and it was taken to Medical College hospital. When the petitioner and others went to hospital and were there in the hospital, somebody pelted stone against police vehicle and he had been falsely implicated in the case. He filed an application for release of his passport, which was surrendered by him before the magistrate and that petition was dismissed by the learned Assistant Sessions Judge, which is being challenged by the petitioner by filing this application.

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Considering the nature of relief claimed in the petition, this court felt that the petition can be disposed of at the admission stage itself after getting a report from the concerned court and hearing the counsel for the petitioner and the learned Public Prosecutor.

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Accordingly a report has been called for from the concerned court and the learned Assistant Sessions

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Crl. M.C. No.2142 of 2014

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Judge sent a report, which reads as follows:

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“S.C.336/2012 is the main case from crime No.231/2009. There were 21 accused in S.C.336/2012, out of which case against accused No.4, 5, 10, 14 and 17 was split up at the time of first committal proceeding No.33/2011 and case against them was taken on file as C.P.66/2011. From among this five accused case against A1 was committed by the Judicial First Class MagistrateI, Kannur and made over by the Sessions Court, Thalassery to this court as S.C.361/2012, which was clubbed with S.C.336/2012. There after case against two of the other accused was committed as per C.P.33/2012 and the case is numbered as S.C.472/2013.

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In S.C. 336/2012, all accused were present and charge against them framed on 08.07.2013, and now the case is posted for evidence on 19.07.2014. There are 27 witnesses to be examined in this case; in which 13 witnesses are occurrence witnesses as per the memo of evidence.

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In S.C.472/2013, accused No.1 is absconding still now and, M.C. was registered against the sureties of the accused No.1. Accused No.2 has appeared and the case is now posted for framing of charges against him and this case is to be clubbed with S.C.336/2012.

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I humbly submit that I may be granted 6 months time to dispose the above case”.

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The counsel for the petitioner submitted that,

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there is absolutely no evidence to connect the petitioner

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Crl. M.C. No.2142 of 2014

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and even if trial is conducted, there is no possibility of conviction and so there is no necessity to keep the passport and detain the petitioner for a long time. Further, now he is getting an opportunity to go abroad for getting employment and on account of this case he is not able to go abroad.

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On the other hand, the application was opposed by the learned Public Prosecutor on the ground that, the trial of the case has already been scheduled and if he is allowed to go now, his presence could not be procured at the time of trial.

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Heard both sides and perused the report of

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the lower court.

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It is an admitted fact that the petitioner has been arrayed as one of the accused by the police in Crime No.231/2009 of Kannapuram Police Station along with other accused persons, alleging commission of the offence under Section 143, 147, 148, 341, 332, 353, 506(I) and 308 read with Section 149 of the Indian Penal Code and Section 3(1) of PDPP Act. It is also an admitted fact that, he has been

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Crl. M.C. No.2142 of 2014

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granted bail on condition of surrender of his passport and it was on that condition, he surrendered the passport and released on bail. Now he wants to go abroad and so he field the application for release the passport, which has been dismissed by the learned Assistant Sessions Judge by a detailed order evidenced by Annexure-A1.

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The questions whether he has committed the crime or whether the identity of the petitioner can be established by the prosecution etc., are matters to be considered at the time of trial. Further it is seen from the report that out of 21 accused, accused Nos. 4, 5, 10, 14 and 17 have not co-operated with the trial and did not appear. So case against them was split up by the committal court and only case against remaining persons including the present petitioner was committed and now pending before the Assistant Sessions court as S.C.No.336/2012. Further it is seen from the report that, cases against some other accused persons were also committed later and they were now clubbed with this case. Now after framing charges, the

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Crl. M.C. No.2142 of 2014

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case is now posted to 19.07.2014 for evidence and the learned Assistant Sessions Judge has stated that the case will be disposed of within six months. So considering the matters mentioned in the report, this court also feels that there is some force in the order rejecting the application for return of passport as the presence of the petitioner could not be procured if he allowed to go abroad now, as the case has already been now scheduled for trial and there is no meaning in allowing him to go and come back within a short period of time. So considering the circumstances, there is no necessity to interfere with the order passed by the court below, which is challenged by the petitioner before this court.

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But however, considering the grievance of the petitioner that pendency of this case prevents him going abroad for getting employment, this court feels that, the petition can be disposed of by giving direction to the Assistant Sessions Judge, Kannur, to dispose of the case, as expeditiously as possible, at any rate within five months

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Crl. M.C. No.2142 of 2014

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from 19.07.2014, on which date the case is now posted for evidence. After evidence, if the petitioner applies for release of the passport again, then the learned Assistant Sessions Judge may consider and pass appropriate orders in that application in accordance with law, at that time.

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This criminal miscellaneous case is disposed of as follows:

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a) The orders of the lower court rejecting

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the application for return of passport does not call for any interference.

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b) The Assistant Sessions Judge, Kannur, is directed to expedite trial of the case, S.C.No.472/2013 pending before that court after cubbing with S.C.No.336/2012 as expeditiously as possible, at any rate within five months from 19.07.2014, on which date S.C.No.336/2012 is posted for evidence.

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c) After evidence, if the petitioner applies for return of passport again, then the Assistant

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Crl. M.C. No.2142 of 2014

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Sessions Judge may consider and pass appropriate orders in that application in accordance with law at that time.

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With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the concerned court, immediately.

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Sd/-

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K. Ramakrishnan, Judge

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// True Copy//

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P.A. to Judge

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Fasil v. State of Kerala

Case brief

What is this about?

What did the court decide?

Fasil v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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