P.M. Hamsa vs Naseetha Manjukandy and State of Kerala

Thomas P. Joseph, J.—Petitioner is accused No. 4 in Crime No. 223 of 2005 of Kannur Town Police Station and accused in L.P.C. No. 98 of 2010 and C.C. No. 65 of 2011 of the court of learned Judicial First Class Magistrate-I, Kannur. He, along with his younger brother and others was charge sheeted by the Kannur Town Police for offences punishable under Sections 323, 406, 420, 498A and 506(ii) read with Section 34 of the Indian Penal Code on a complaint preferred by Respondent No. 1, wife of younger brother of Petitioner alleging cruelty, harassment, etc. Accused No. 2 was acquitted after trial in C.C. No. 290 of 2005 on 25.04.2008, accused No. 3 expired during pendency of trial and the case against Petitioner was split up and refiled as C.C. No. 315 of 2009. Later it was included in the L.P. Register as L.P.C. No. 98 of 2010. In the meantime Petitioner surrendered and was granted bail.C.C. No. 65 of 2011 stands posted on 16.05.2011. As a condition for grant of bail Petitioner has surrendered his passport. Petitioner says that he came to his native place from abroad for 90 days and if he is not able to go back on time he will loose his job and visa. Learned Counsel requested that Petitioner may be permitted to go abroad. It is submitted that there is no dispute regarding identity of Petitioner and that trial will not be stalled since Petitioner is prepared to take part in the trial through counsel and file necessary affidavit before the learned Magistrate. I have heard learned Public Prosecutor.

Having regard to the circumstances stated by learned Counsel I am inclined to allow the request. Resultantly this petition is allowed in the following lines:

A. Learned Judicial First Class Magistrate-I, Kannur is directed to release the passport to the Petitioner on his complying with conditions i to v:

i. Petitioner shall execute bond for `.2,50,000/- (Rupees Two lakhs and fifty thousand only) with two sureties for the like sum each undertaking to appear before the learned Judicial First Class Magistrate-I, Kannur as and when required.

ii. Petitioner shall file affidavit before the learned Magistrate stating that he will not dispute identity in the course of trial, that he has no objection in the trial proceeding in his absence and that he will be represented by his counsel in the course of trial.

iii. It is open to the Petitioner to move the learned Magistrate for exemption from appearance u/s 205 of the Code of Criminal Procedure (for short, "the Code") and if any such request is made, learned Magistrate may consider the same having regard to the facts and circumstances and considering the fact that Petitioner is employed abroad.

iv. In case permanent exemption is granted Petitioner shall file affidavit stating that his examination u/s 313 of the Code shall be held in the manner stated by the Supreme Court in Basavaraj R. Patil and Others Vs. State of Karnataka and Others, - at page 743.

v. Petitioner shall in the affidavit referred above state the address and contact telephone number of the counsel who will defend him in the course of trial.

B. Petitioner shall within two weeks of his reaching destination intimate his counsel referred to in the affidavit stated above and the Investigating Officer his address and contact telephone number abroad.