Sivadasan vs State Of Kerala

This application under Section 439 of the Cr.P.C is filed seeking regular bail.

The applicant herein is the sole accused in S.C. No.556 of 2018 on the file of the Additional Sessions Judge II, North Paravur. As per the charge laid before the Sessions Judge, on 16.11.2017, at about 10 am, the applicant herein attacked his wife with weapons and committed murder. In the aforesaid case, he is accused of having committed offences punishable under Section 302, 324 and 326 of the IPC.

The incident was witnessed by the mother of the deceased and her minor children and they have given a graphic description of the manner in which the applicant used to subject his wife to incessant cruelty and harassment which finally culminated in the incident which took place on 16.11.2017. The records reveal that the applicant had approached the Court of Session as well as this Court seeking bail and his request was denied taking note of the nature and gravity of the allegations, the severity of punishment which conviction would entail, the reasonable possibility of the applicant influencing the eye witnesses and other valid considerations. However, specific direction was issued to the Court of Session to expedite the trial proceeding. Later, while disposing of Annexure-4 bail application, on 10.12.2019, this Court taking note of the facts and circumstances permitted the applicant to move the Court of Session after the examination of CWs 1 to 5 and CWs 22 to 24, which witnesses, according to the prosecution, were vulnerable. In tune with the directions, the petitioner approached the Court of Session and by Annuexure-A5 order, his application was rejected, taking note of the fact that CW24 is yet to be examined.

Sri. C.Rajendran, the learned counsel appearing for the petitioner, submitted that the applicant has been undergoing incarceration for about 3 years. According to the learned counsel, his children are in the orphanage. Despite orders issued by this Court, the trial has been delayed owing to the pandemic and the reasonable likelihood of the case being proceeded with, in the near future is remote.

Sri.Suman Chakravarthy, the learned Senior Government Pleader submitted that except for CW24, all other vulnerable witnesses have been examined. The said witness, who is none other than the son of the applicant, was afflicted with novel COVID-19 virus and he could not be examined owing to the said reason. It is submitted that after examination of the said witness, the trial can be concluded without any further delay.

I have considered the submissions advanced. It is evident from the order passed by the learned Sessions Judge that CW24 has not yet been examined. His examination was delayed owing to his tender age and vulnerable mental condition. It also appears that he was diagnosed with COVID-19 as well. The learned Senior Government Pleader has submitted that the child was tested and he was found negative. In that view of the matter, I direct the learned Sessions Judge to expedite the trial taking note of the fact that the applicant has been undergoing incarceration from 16.11.2017 onwards. Necessary steps shall be taken to summon CW24 and examine him within a period of 3 weeks from today if there are no other impediments. After examination of the said witness, the applicant may move the Court of Session seeking bail. If such an application is filed, the learned Sessions Judge shall consider the application and pass appropriate orders in consonance with law, at any rate, within a period of two weeks from the date of filing of the application.

This application is dismissed with the above directions.