IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.MC.No. 1464 of 2011() ------------------------------------ CC.1177/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KOTTARAKKARA .................... PETITIONER/5TH ACCUSED ----------------------------------------- SAMUEL KUTTY, AGED 43, S/O.DANIEL, EATTY VILA BHAVAN, MYLAM VILLAGE, PULAMON CHERRY, KOTTARAKKARA P.O., KOLLAM-691. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT/STATE OF KERALA --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.MANU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1464 of 2011 -------------------------------------- Dated this the 24th day of May, 2011. ORDER Petitioner is the fifth accused in Crime No.631 of 2004 of Kottarakkara Police Station and C.C.No.1177 of 2009 of the court of learned Judicial First Class Magistrate-I, Kottarakkara for offences punishable under Sections 143, 147, 188 and 283 read with Section 149 of the Indian Penal Code. Prosecution case is that on 25.06.2004 about 15 employees including petitioner took out a procession along public road in violation of the court order, refused to abide the direction of the Police Officials to disperse and caused obstruction to the vehicular traffic. After investigation, Police submitted Annexure-II, final report alleging that petitioner and others committed offences as above stated. Since petitioner was not available, coercive steps were initiated against him under Section 82 of the Code of Criminal Procedure (for short, “the Code”) as per Annexure-IV, proclamation dated 21.02.2011 directing petitioner to appear before the learned Magistrate on 24.05.2011. In the meantime, accused 1 and 2 faced trial in C.C.No.573 of 2005 and they were acquitted mainly for the reason of want of identity. Case against other accused including petitioner was refiled as C.C.No.1177 of 2009. Petitioner is now abroad and challenges proceeding initiated against him under Section 82 of the Code as also Annexures-I and II, FIR and final report in the case to the extent it concerned him. Crl.MC No.1464/2011 2 2. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned counsel submitted that there is absolutely no material to show that petitioner is involved in the alleged incident. At any rate, the proceeding initiated under Section 82 of the Code is illegal since it is not shown that summons or warrant issued to the petitioner were served or could not be executed so that coercive steps are to be initiated. Learned Public Prosecutor submitted that there is no reason to interfere with the final report or the proceedings taken by the learned Magistrate. 3. So far as the request to quash Annexures-I and II, FIR and final report is concerned, it is seen that the final report was submitted on 25.05.2005. The question whether prosecution witnesses could identify petitioner as one among the persons who allegedly were involved in the incident is a matter which the trial court has to decide. Having regard to the above circumstances I am not inclined to interfere with the matter so far as Annexures-I and II are concerned. The plea of alibi if any raised is a defence which petitioner has to urge before the trial court and not in a proceeding under Section 482 of the Code. 4. So far as proceeding under Section 82 of the Code is concerned, there are sufficient safeguards provided in the Code in Chapter VI. According to the learned counsel, property of the petitioner is liable to be placed under attachment since as per Annexure-IV, proclamation petitioner is directed to appear before the learned Magistrate this day. Assuming so, Section 85 (2) of the Code says that the property shall not be sold for a period of six months from Crl.MC No.1464/2011 3 the date of attachment. It is open to the petitioner to appear before the learned Magistrate during the said period and request to release attachment on showing appropriate grounds as provided under law. Even if the property on the expiry of the prescribed period is placed at the disposal of the State Government, it is open to the petitioner to appear before the court within two years as provided under Section 85(3) of the Code and show cause in which case also learned Magistrate has power as provided under Section 85(3) of the Code to pass appropriate orders. In such a situation the appropriate course open to the petitioner is to invoke remedies available to him under Section 85 of the Code. I do not find reason to interfere. 5. Learned counsel submitted that in case petitioner appears before the learned Magistrate and applies for release on bail, learned Magistrate may be directed to dispose of the application for bail on the same day itself. In view of the decision in Martin v. State of Kerala (2004 (2) KLT 1037) no such direction could be issued. But I direct the learned Magistrate to dispose of such application if any preferred by petitioner as early as possible having regard to the contention of the petitioner that he has been working abroad. Crl.MC No.1464/2011 4 Resultantly without prejudice to the right of petitioner to take appropriate plea/defence before the learned Magistrate and seek remedy under Section 85 of the Code and with a direction that in case any application for bail is preferred the same shall be disposed of as provided under law as early as possible, this Criminal Miscellaneous Case is dismissed. THOMAS P.JOSEPH, Judge. cks