IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 Crl.MC.No. 3853 of 2007() ------------------------- CC.376/2003 of JUDL.MAGISTRATE OF FIRST CLASS, KOYILANDY .................... PETITIONER: ------------ PARTHAN, S/O CHOYI, PATHUKANDATHIL HOUSE, THALAKULATHOOR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY HOME SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE STATION HOUSE OFFICER, ELATHUR POLICE STATION, ELATHUR, KOZHIKODE,(CRIME NO.27 OF 2003) BOTH REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------ CRL.M.C.NO.3853 OF 2007 ------------------------------------- Dated this the 1st day of January, 2008 O R D E R The petitioner who is the sixth accused in crime No.27/03 of Elathur Police Station filed this Crl.M.C. with a prayer for directing the Judicial First Class Magistrate Court, Koyilandy to assure speedy trial of C.C.No.602/07 pending against the accused and also for the direction to enlarge the petitioner on bail and also exempting him from personally appearing in the court and allow him to represent him by his counsel. It is also prayed for directing the second respondent not to execute the non bailable warrant pending against the petitioner. 2. The prosecution case in the above crime is that on 1.2.2003 at about 5 p.m., while the defacto complainant was riding his motor cycle with a pillion rider the accused herein formed themselves into an unlawful assembly and committed rioting and A1 and A2 have thrown the bicycle in front of the motor cycle of the defacto complainant and thereby caused they fallen from the motor cycle and all the accused caused grievous CRMC3853/2007 2 hurt to defacto complainant by means of iron rod, which resulted in the fracture of the leg of the defacto complainant. Thus, according to the prosecution the accused committed the offence punishable under Sections 145, 147, 148, 324, 326 read with Section 149 IPC. The police after investigation has filed a final report on the basis of which cognizance was taken by the Judicial First Class Magistrate, Koyilandy as C.C.No.376/03. During the trial, the case against the petitioner, who is the sixth accused, has been split up and renumbered as 602 of 2007. As per Annexure II judgment, A1 to A5 and A7 to A10 were found guilty and accordingly they were convicted and imposed sentences. Those convicted accused has already filed appeal which is pending for consideration. In the above Crl.M.C. it is stated that the petitioner is ready to appear before the court below and to face the trial and therefore prays that the Magistrate may be directed to expedite the trial and to allow the relief sought in this Crl.M.C. 3. I have heard the counsel for the petitioner as well as the Public Prosecutor. 4. The counsel for the petitioner submitted that even CRMC3853/2007 3 going by the Annexure II judgment it can be seen that no overt act attributed to the petitioner and there is no evidence to implicate him in the above case. In this proceeding the only prayer is to issue a direction for speedy trial and to release the petitioner on bail on his surrendering before the court below and for a further direction to exempt him from his personal appearance during trial and to represent through the counsel. It is also prayed for directing the second respondent not to execute the non bailable warrant pending against the petitioner. 5. The records show that the incident was taken place on 1.2.2003 and in the said incident, the defacto complainant sustained fracture injury on his leg and therefore including the petitioner and other accused were charge sheeted for the offences punishable under Sections 145, 147, 148, 324 and 326 read with Section 149 IPC. On the basis of the report filed by the police, the trial except A6 has already been taken place and other accused were convicted. Now the petitioner approached this court by invoking Section 482 Crl.P.C. with the above prayer. Since the investigation is already over and accused those who were faced the trial has been convicted, I hope that CRMC3853/2007 4 the custody of the petitioner is not necessary either in the police custody or in the judicial custody. Therefore, it is open to the petitioner to surrender before the trial court with a petition for withdrawing the non bailable warrant and also file a petition for seeking a regular bail. Since the investigation is already over and the other accused were convicted and sentenced as per Annexure II judgment there is no basis for the apprehension of the petitioner that in case he appears before the court below he will be remanded to the Judicial custody. 6. In the result, I am disposing this Crl.M.C. directing the petitioner to surrender before the Judicial First Class Magistrate Court-Koyilandy within two weeks from the date of receipt of a copy of this order and to move an application for bail as well as the petition for recalling the NBW pending against him. In the event of the petitioner surrendering before the court below and on moving the application for bail and also for recalling the non bailable warrant pending against him the Magistrate is directed to consider those petitions on merits, keeping in mind the observation made above and to dispose of those petition preferably on the date on which it is filed. It is CRMC3853/2007 5 also open to the petitioner to file petition for exemption and I find no reason for non-consideration of the same on merit by the learned Magistrate. With the above observation and direction this Crl.M.C. is disposed. V.K.MOHANAN, JUDGE csl