IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, 12TH AUGUST 2008 / 21ST SRAVANA, 1930 Bail Appl..No. 5212 of 2008() ----------------------------- SC.710/2003 of ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM CRIME NO.30/01 OF PETTAH POLICE STATION PETITIONER ----------------- BINUKUMAR S/O.MANIYAN, LESHMI VILASOM, TC 5/1132, AMBALAMUKKU, KURAVANKONAM WARD, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.8.2008, THE COURT ON 12/08/2008 PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 5212 of 2008 ----------------------------------------- Dated this the 12th August, 2008 O R D E R This petition is for bail. 2. Petitioner is the third accused in the case pending before the Fast Track Court-I. He was on bail, but he was absent on 25.8.2007, 31.10.2007 and 5.11.2007 and therefore non bailable warrant was issued. Proceedings under Section 446 Cr.P.C were initiated. 3. Petitioner, in the meantime, filed a petition as B.A.No.4381 of 2008 before this Court for anticipatory bail. The said petition was disposed of by this Court, as per order dated 9.7.2008. The petitioner produced various documents, medical records etc. to substantiate that he was hospitalised and was under medication from 30.10.2007 onwards and hence he could not appear on 31.10.2007 onwards. Learned counsel for petitioner submitted that petitioner had an accident and he was under Ayurvedic treatment first, and then Alopathy also. He had a dislocation. X-ray was also taken and the receipt issued for X-ray on 31.10.2007 was produced. 4. Therefore, on going through the documents, this Court observed that the petitioner's absence cannot be said to be wilful BA.5212/08 2 and if these facts are brought to the notice of the lower court, there is no reason why bail shall not be granted to the petitioner, even though anticipatory bail is not the remedy. The apprehension expressed by the petitioner that he will be remanded without any reason was found to be baseless and this court observed that the petitioner may move the trial court itself for appropriate relief. 5. But, petitioner was remanded when the petitioner surrendered before the Additional Sessions Court and this application for bail was dismissed. This was on 5.8.2008. 6. Learned counsel for petitioner submitted that one of the main reasons for dismissing the petition was that the very same counsel appeared for the surety of the petitioner and also for the petitioner in two different proceedings before this Court, and in the order passed in the Criminal Appeal filed by the surety, this court observed that the counsel for the appellant contended that the surety was unable to produce the accused (petitioner) in view of his proceeding abroad. But the same counsel took up a contention in the anticipatory bail application filed by the petitioner that the petitioner was laid up. The case set up by the petitioner was hence, not believed by the learned Sessions Judge, since reasons projected in the two proceedings were different. 7. Learned counsel for petitioner submitted that the Criminal Appeal filed by the surety was disposed of as early as on 3.1.2008 BA.5212/08 3 and his counsel was making representation before court in that appeal only as per the instruction given to the counsel by the surety. But, the anticipatory bail application was filed after seven months in July, 2008, wherein, the instructions were given by the petitioner himself and representations were before the court based on his instructions that he was laid up. He also produced documents to support his contention that his absence was solely due to medical reasons. This court had gone through the various documents. Therefore, the contradictions in the submissions made in two proceedings ought not to have been taken as a ground to remand the petitioner, especially since this Court had observed that the petitioner's absence cannot be said to be wilful, after perusing the documents produced before this Court, it is submitted. 8. Another ground shown in the order is that the petitioner suppressed the truth from this Court that he was regularly appearing in the court. The crucial date in this case is 31.10.2007. The only date prior to that, on owhich, petitioner was absent was 25.8.2007, but on that day petition for excusing absence was allowed. The representations made before this Court were with respect to the proceedings prior to 31.10.2007, and absence of the petitioner on one occasion, immediately prior to 31.10.2007, which was condoned by the court below cannot be taken into account to say that the petitioner was making a wrong submission or BA.5212/08 4 suppressing the truth etc., it is contended. It is submitted that warrant happened to be issued to petitioner only because of the petitioner's absence on 31.10.2007 which date was relevant in this case and there were sufficient records to show that his absence was not wilful and it was because of medical grounds. It is also submitted that the trial started in 2003 and so far, during the period of five years, there was not even one instance earlier, in which, the court below issued warrant against the petitioner. 9. On hearing both sides, I am satisfied that it was unfortunate that the petitioner was remanded. This is a case where he ought not to have been remanded to custody, without appreciating the facts and circusmtances properly. Powers are not intended to be used thoughtlessly. It shall be used, only after being fully satisfied that it is a fit case to use the same, that too, before sending a person to prison. This mishap could have been avoided, had some deserving care been taken in the matter. Hence, petitioner is granted bail on his executing a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the Fast Track Court-I, Thiruvananthapuram. Petition is allowed. K.HEMA, JUDGE vgs.