Thomas Alva Edison vs State of Kerala

K. Ramakrishnan, J.—This criminal miscellaneous case was filed by the petitioner, who is the accused in S.C. No. 92/2012 pending before the 5th Additional District Court, Ernakulam, challenging the order dismissing the absent petition and issuing non-bailable warrant against the petitioner under Section 482 of the Code of Criminal Procedure (hereinafter called ''the Code'').

It is alleged in the petition that, the petitioner has been arrayed as accused in crime No. 441/2009 of Ernakulam Central police station, alleging commission of the offence under Section 302, 307 and 436 of the Indian Penal Code. After investigation final report was filed and it was taken on file as S.C. No. 92/2012 and made over to 5th Additional District Court, Ernakulam (Edamalayar) for disposal. Earlier as per Annexure-1 order in Bail Application No. 2624/2009 dated 19.05.2009, this court has granted bail to the petitioner and he was regularly appearing before the court. On 07.05.2014, the case was posted for hearing on the question of framing charge and on that day he informed the counsel that, he was not in a position to appear before the court, but unfortunately because of the heavy traffic block, his counsel could not reach the court in time and file the application for condoning his absence and the case was called and his bail bond was forfeited and non-bailable warrant was issued and notice to sureties were sent and posted to 05.06.2014. On 05.06.2014, as per the instruction of the counsel, petitioner was present before the court and he moved the bail application but the learned Sessions Judge dismissed the bail application and remanded the petitioner to custody and thereafter he approached this court by filing Bail Application No. 4295/2014 and as per Annexure-A2 order again bail was granted to the petitioner and he had executed the bail bond and he was released on bail. Again on 10.07.2014 when the case was posted for framing charge, the petitioner could not appear before the court, because he was laid up and that fact was informed by the counsel on 09.07.2014 and the learned counsel applied for condoning his absence as Crl. M.P. No. 910/2014 stating the reason, but the learned Sessions Judge dismissed the application and issued non-bailable warrant against the petitioner. He is not able to procure new sureties. According to the petitioner, the order passed by the court below is illegal and the court has no power to forfeit the bail bond executed by the petitioner and sureties as per the direction of this court and so he has no other remedy, except to approach this court, seeking the following reliefs:

Revive the Annexure-A2 bail order in B.A. No. 4295/2014 dated 18.06.2014 and permit the petitioner to continue the bail bond executed by the petitioner and his sureties before the Sessions Court till the disposal of the above sessions case.

Grant such other relief that may be deem fit and proper in the facts and circumstances of the case.

Heard the counsel for the petitioner and learned Public Prosecutor.

The learned counsel for the petitioner submitted that, his absence is not willful and in fact he was represented by the counsel, in spite of that fact, the learned Sessions Judge has dismissed the application. He has no other sureties now. On two occasions he had produced sureties and getting new sureties will be difficult. So he prayed for allowing the application.

The application was opposed by the learned Public Prosecutor on the ground that he had jumped bail twice.

It is an admitted fact that, the petitioner was arrayed as an accused in Crime No. 441/2009 of Ernakulam Central Police Station and originally as per Annexure-A1 order in Bail Application No. 2624/2009, bail was granted to the petitioner and after committal, the case was taken on file as S.C. No. 92/2012 of the Sessions Court, Ernakulam, and thereafter made over to 5th Additional Sessions Court, Ernakulam, for disposal. It is seen from the petition itself that, on an earlier occasion, when the case was posted for his appearance, he did not appear and his counsel also could not appear due to some traffic jam and so his bail bond was cancelled and non-bailable warrant issued. Though he filed an application for recalling the warrant and release him on bail, then the learned Sessions Judge dismissed the application and remanded him to custody. So the petitioner moved this court for bail as Bail Application No. 4295/2014 and this court by Annexure-2 order granted bail to the petitioner, accepting the reasons stated by the petitioner for his non-appearance and accordingly he had executed the bail bond in tune with Annexure-A2 order. Unfortunately again he could not appear for reason stated by the petitioner, not known as to whether it is real or not. But however, an application to condone his absence was filed through his lawyer but that was dismissed by the court below. So it cannot be said that, he was willfully or deliberately avoiding appearance before the court. It appears that, he has filed an application for condoning his absence in Crl. M.P. No. 910/2014, but it was dismissed by the court below. The submission or contention of the petitioner that, since the bail has granted by this court, the Sessions Judge has no power to forfeit the bail is not correct. If the accused did not appear and the court was not satisfied with the reasons, then the court has power under Section 446 of the Code to forfeit the bond and proceed against the accused and his sureties, who execute the bond. So under the circumstances, this court feels that, the non-appearance of the petitioner cannot be said to be willful or deliberate. So, if the petitioner appears before the 5th Additional District Court, Ernakulam, (Edamalayar) in S.C. 92/12 and apply for recalling the warrant and release him on bail, stating the reason for his non-appearance, then the learned Sessions Judge is directed to consider and dispose of the bail application and permit the petitioner to execute the bail bond, if bail is granted with the same sureties whom he had produced as Annexure-A2 order, and imposing certain conditions for procuring his presence without fail.

With the above direction and observation, the criminal miscellaneous case is disposed of. Office is directed to communicate this order to the concerned court, immediately. Handover a copy of the order to the counsel for the petitioner, so as to enabling him to produce the same before the concerned court.