Remanded

Lijin T v. State of Kerala

Kerala HC17 Oct 2016Crl.MC/4786/2016

Case brief

AI extract

What is this about?

The Kerala High Court directed a Magistrate to release the petitioner's passport for one year while imposing conditions. The court held that an accused working abroad can get personal exemption under Section 317 CrPC if he undertakes not to dispute his identity and allows counsel to represent him.

What did the court decide?

Magistrate directed to release passport for one year by imposing appropriate conditions if fresh application with mandatory undertaking is filed.

Lijin T Vs State of Kerala — Service and Employment | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938

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Crl.MC.No. 4786 of 2016 () ---------------------------

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CRIME NO. 733/2012 OF CHAKKARAKKAL POLICE SATION , KANNUR

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PETITIONER(S):

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LIJIN T S/O. SASIDHARAN, 26/16, PARAYIL HOUSE, VANIYAMCHAL HOUSE, P.O.EACHUR, KANNUR DISTRICT

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BY ADVS.SRI.K.SIJU SRI.S.ABHILASH SMT.S.SEETHA

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, CHAKKARAKKAL POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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R BY PUBLIC PROSECUTOR, SRI.T.R.RENJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CONTD....

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:2:

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Crl.MC.No. 4786 of 2016 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------ANNEXURE 1 THE COPY OF FIR WITH RELEVANT PAGES OF THE FINAL REPORT OF CRIME NO. 733/2012 OF CHAKKARAKKAL POLICE STATION. ANNEXURE 2 THE COPY OF PEITION IN CMP NO. 1855/2016 FOR RETURN OF PASSPORT.

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ANNEXURE 3 THE COPY OF PETITION FOR PERMANENT EXEMPTION FILED BY THE PETITIONER.

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ANNEXURE 4 THE COPY OF COMMON ORDER DATED 16.7.2016. IN C.M.P. NO. 1855/2016 IN C.C.NO. 257/2014 ON THE FILE OF CJM COURT, THALASSERY.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

SKS

RAJA VIJAYARAGHAVAN V., J.

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Crl.M.C. No. 4786 of 2016

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Dated this the 17^th day of October, 2016

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O R D E R

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1.The petitioner is the 2^nd accused in C.C. No. 257 of 2014 on the file of Chief Judicial Magistrate Court, Thalassery. He is proceeded against for having committed offences punishable under Sections 143, 147, 148, 341, 323, 324 r/w 149 of the IPC.

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2.The prosecution allegation is that, on 20.07.2012 at 12.15 pm, the accused Nos. 1 and 2 along with 13 other identifiable persons formed themselves into an unlawful assembly and after wrongfully restraining the de facto complainant, assaulted him.

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3.The petitioner is working abroad and he surrendered before the court below on 08.06.2016 and was enlarged on bail. In the order granting bail, the petitioner was required to surrender his passport. Thereafter, he filed an application before the court below seeking return of the passport and also for permanent exemption. The said application was dismissed by the learned Magistrate by

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Crl.M.C. No. 4786 of 2016

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Annexure-4 order, which is assailed in this petition.

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4.The learned counsel appearing for the petitioner submits

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that the application was dismissed on the ground that the case was posted for hearing on framing of charge. It is submitted that on 14.10.2016, the charge has been framed. Elaborating further, it is submitted that the petitioner is working at Dubai, Alquooz and being the sole breadwinner of his family, if he is not permitted to go abroad, he would lose his employment. It is further submitted that the petitioner had preferred separate applications before the court below seeking exemption from appearance and he had also undertaken that he would not dispute his identity. He had also undertaken that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence in compliance with Section 317 of the Code of Criminal Procedure. Reliance is also placed on the decisions of the Apex Court in Chandu Lal Chandrarker

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v. Puran Mal and Another [AIR 1988 SC 2163] and also that of this Court in Raju T.P. v. State of Kerala

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[2009 (3) KHC 14] to buttress his submissions. It is

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Crl.M.C. No. 4786 of 2016

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further submitted that the petitioner was always prepared to abide by any condition that may be imposed by the learned Magistrate. The learned counsel also relies on this court to S.K. Asok Kumar v. State of Kerala [2009(2) KLT 712] to contend that there was no justification on the part of the Magistrate in refusing the permission sought for in the facts and circumstances.

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5.The learned Public Prosecutor on instructions submits that no other cases are reported as against the petitioner.

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6.I have considered the rival submissions and have gone through the impugned order. The factors which persuaded the court below to dismiss the application filed by the petitioner is that the charge had not been framed and if the presence of the petitioner is not secured, the trial would be delayed. However, it is by now settled that the court has the discretionary power to exempt the personal appearance of the accused even in warrant cases. As held in Raju T.P. (supra), if the petitioner files an application that he shall not dispute his identity as the particular accused in the case; that his counsel for and

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Crl.M.C. No. 4786 of 2016

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on his behalf will be present in Court; and that he has no objection in taking the evidence in his absence treating

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the presence of the counsel as his presence, in compliance with S.317 of Code of Criminal Procedure, there is no reason why the discretion shall not be exercised in favour of the accused even in a warrant trial by the Magistrate. If the application filed by the petitioner seeking permanent exemption does not contain the undertaking as mandated in Raju T.P .(supra), the petitioner shall file a fresh application. If such an application is filed, the learned Magistrate is directed to pass orders in terms of the directions is S.K.Asok Kumar (supra) releasing the passport for a period of one year by imposing appropriate conditions.

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The petition is disposed of as above.

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Sd/-

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RAJA VIJAYARAGHAVAN.V., JUDGE

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SKS

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/TRUE COPY//

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P.A. TO JUDGE

Lijin T v. State of Kerala

Case brief

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Lijin T v. State of Kerala

Case brief

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