Ramesh @ Kannan vs State of Kerala

M. Sasidharan Nambiar, J.—Petitioner was the fifth accused in Crime Nos. 239/CR/01 and 95/CR/92 of CBCID CFS, Thiruvananthapuram, registered for the offences under Sections 120B and 489B and C read with Section 34 of Indian Penal Code. Final report submitted u/s 173(2) of Code of Criminal Procedure was taken cognizance as S.C. No. 501/2006. As petitioner failed to appear subsequently and the sureties failed to produce him, bail granted to the petitioner was cancelled and proceedings were initiated u/s 446 of Code of Criminal Procedure and penalty was imposed on the sureties. The case against the petitioner was split up. Later, petitioner appeared and the case was re-filed as S.C. No. 582/2009. Petitioner was released on bail. Again, petitioner failed to appear and when the sureties were directed to produce the CRMC 3520/10 2 petitioner, he filed an application along with the medical certificate. Public Prosecutor objected to the application, disputing the medical certificate. Learned Sessions Judge issued summons to the Doctor and examined the Doctor, who gave evidence that signature of the person, who approached for the medical certificate, is different from the signature shown in the vakalath. Learned Sessions Judge reported that the person, who appeared before the doctor to obtain the medical certificate, is not the petitioner. Learned Sessions Judge, thereafter, cancelled the bail and issued non bailable warrant. This petition is filed u/s 482 of Code of Criminal Procedure to direct the Sessions Judge to release the petitioner on bail on his surrender and moving an application for bail.

As it was represented that 12 witnesses were examined in S.C. No. 501/2006 and trial of S.C. No. 582/2009 was directed with S.C. No. 501/2006 and petitioner is being asked to cross-examine the witnesses from PW12 onwards, a report was called for from the learned Sessions Judge as to how many witnesses have already been examined for the prosecution in S.C. No. 501/2006, has the trial in S.C. No. 582/2009 been started and if so, what is the stage and if 11 prosecution witnesses were examined in S.C. No. 501/2006, how could S.C. No. 582/2009 be posted along with S.C. No. 501/2006. Report of the learned Sessions Judge shows that S.C. No. 582/2009 is the split up case of S.C. No. 501/2006 and 9 witnesses were examined in S.C. No. 501/2006 and as petitioner appeared, trial was stopped and S.C. No. 501/2006 is rescheduled. Learned Sessions Judge reported that it was in view of the evidence of the doctor, non bailable warrant was issued to the petitioner.

If trial of S.C. No. 501/2006 was commenced and some of the witnesses were already examined, S.C. No. 582/2009 cannot be tried along with S.C. No. 501/2006, unless all the witnesses already examined are again examined in the presence of the petitioner. I do not find that learned Sessions Judge would insist the petitioner to cross-examine the witnesses from PW12 onwards as has been represented. The report of the learned Sessions Judge shows that petitioner failed to appear, even though he was released on bail after proceedings were initiated u/s 446 of Code of Criminal Procedure and penalty was imposed on the sureties. In such circumstances, I do not find that a direction is to be issued to the Sessions Judge to release the petitioner on bail as sought for. It is up to the learned Sessions Judge to consider the application for bail as and when petitioner appears and pass appropriate order in accordance with law. It is also made clear that if presence of the petitioner is procured and S.C. No. 582/2009 is to be tried with S.C. No. 501/2006, learned Sessions Judge must recall all the witnesses so far examined and examine them in the presence of the petitioner granting liberty to cross-examine them. If presence of the petitioner cannot be procured, trial of S.C. No. 501/2006 shall be conducted separately and petitioner shall be tried separately.

Petition is disposed accordingly.