Krishnamoorthy @ Moorthi vs State of Kerala

Thomas P. Joseph, J.—This petition concerns the 3rd accused in C.C. No. 818 of 2009 of the Court of learned Judicial First Class Magistrate-II, Hosdurg, who, along with others was convicted for offences punishable under Secs.457, 380, 461 and 120B r/w Sec.34 of the Indian Penal Code and sentenced to undergo imprisonment for various periods and as the learned counsel submits, consecutively. Petitioner has preferred Crl.Appeal. No. 102 of 2011 challenging his conviction and sentence. That appeal is now pending consideration before learned Additional Sessions Judge (Adhoc-III), Kasaragod. Petitioner had filed application for suspension of sentence and for bail before learned Sessions Judge under Sec.389 of the Code of Criminal Procedure (for short, "the Code") but, that application was dismissed. That dismissal was challenged in this Court in Crl.M.C. No. 1794 of 2011. By order dated 16.06.2011 this Court refused to interfere with the discretionary jurisdiction exercised by the learned Sessions Judge but directed the learned Sessions Judge who is hearing Crl.Appeal. No. 102 of 2011 to expedite disposal of the appeal having regard to the fact that petitioner is in custody for about 2 years from the date of the said order. In the meantime, 6th accused in the case moved the Supreme Court for suspension of sentence and the Supreme Court was inclined to grant him bail as per order dated 27.01.2012 in S.L.P.(Crl) No. 9490 of 2011.

Petitioner has now moved this Court again under Sec.482 of the Code requesting to suspend the sentence and grant him bail in the light of the order passed by the Supreme Court concerning a similarly placed accused.

Learned counsel for petitioner submits that petitioner has already been in the prison for about 31 months and that similarly placed accused has already been granted bail by the Supreme Court by Annexure-A1, order referred above. It is contended that there is no reason why a different treatment should be given to the petitioner.

Learned Public Prosecutor has raised the apprehension that since petitioner belongs to Tamil Nadu, he may make his presence scarce when required. It is also submitted by the learned Public Prosecutor that petitioner is involved in other cases as well and that he is one of the main accused in the case.

So far as the present case is concerned, it is seen that the 6th accused who is similarly placed with the petitioner is granted bail by the Supreme Court by Annexure-A1, order. I must notice that petitioner is in the prison for the last 31 months as the learned counsel submits. I must also notice that while disposing of Crl.M.C. No. 1794 of 2011 this Court had directed learned Sessions Judge to expedite disposal of the appeal bearing in mind that petitioner is in custody since long and as submitted by the learned counsel and not disputed by the learned Public Prosecutor hearing of the appeal has not commenced which means that it may take further time for disposal of the appeal. In these circumstances, with necessary precautions to allay the apprehension raised by the learned Public Prosecutor I am inclined to suspend the sentence imposed on petitioner and grant him bail imposing appropriate conditions. To allay the apprehension of learned Public Prosecutor that since petitioner is a native of Tamil Nadu and may make himself scarce, learned counsel has volunteered on behalf of petitioner that the sureties shall be from the State of Kerala and they shall offer immovable property situated in the State of Kerala as security. The said submission is accepted.

Having regard to the circumstances above stated I am inclined to grant the relief prayed for.

The criminal miscellaneous case is allowed as follows:

The sentence imposed on petitioner/3rd accused in C.C. No. 818 of 2009 of the Court of learned Judicial First Class Magistrate-II, Hosdurg (pending consideration before the learned Sessions Judge (Adhoc-III), Kasaragod in Crl.Appeal. No. 102 of 2011) is suspended and petitioner is granted bail until further orders subject to the following conditions:

(i) Petitioner shall execute bond for Rs. .25,000/- (Rupees Twenty Five Thousand Only) with two sureties for the like sum each to the satisfaction of learned Judicial First Class Magistrate-II, Hosdurg.

(ii) As offered by the learned counsel, the sureties shall be from the State of Kerala and the landed property to be offered as security shall be situated in the State of Kerala.

(iii) The sureties shall produce along with a recent receipt for payment of revenue, photocopy of their document of title attested by the counsel who is appearing for the petitioner in the trial court.

(iv) Sureties shall also produce photocopy of their identity card attested as above stated before the learned Magistrate.

(v) Petitioner shall not, except with the permission of learned Sessions Judge (Adhoc-III), Kasaragod (where Crl.Appeal. No. 102 of 2011 is pending) leave the local limits of the State of Kerala.

(vi) Petitioner shall report to the S.H.O, Central Police Station, Ernakulam (within the limits of which, I am told that petitioner is now staying) on all alternate Saturdays between 9a.m and 10a.m until the disposal of the criminal appeal or otherwise as may be directed by the learned Sessions Judge who is hearing the appeal.

(vii) Petitioner shall not during the time he is on bail get involved in other criminal case.

(viii) It is made clear that violation of any of the above condition will be sufficient for cancellation of suspension of sentence and bail granted hereby.