IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 Crl.MC.No. 664 of 2011() ------------------------------------- CMP.NO.593/2011 IN CRIME NO.414/2006 OF POOYAPPALLY POLICE STATION ..... PETITIONER(S): PETITIONER:ACCUSED: ------------------------------------------------------------- THAHA, S/O.ABDUL AZEEZ, THEKKEVILA HOUSE, VATTAPARA MURI, VELINALLOOR VILLAGE. BY ADVS. SRI.ALEXANDER GEORGE, SRI.Y.A.RAHIM. RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATION HOUSE OFFICER, POOYAPPALLY POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.664 of 2011 -------------------------------------- Dated this the 9th day of March, 2011. ORDER Petitioner is the accused in Crime No.414 of 2006 of Pooyappally Police Station for offence punishable under Section 376 of the Indian Penal Code. Allegation is that on a false promise of marriage petitioner subjected the defacto complainant to sexual intercourse on 23.09.2006 at about 8.15 a.m.. Learned counsel submitted that petitioner was arrested on 30.11.2010 and his passport was also seized by the Police and produced before learned Judicial First Class Magistrate-II, Kottarakkara. Petitioner filed C.M.P.No.593 of 2011 to release the passport to him since in connection with employment he has to go abroad, otherwise, the period of his visa would expire and he will loose his job. Learned Magistrate dismissed C.M.P.No.593 of 2011 vide Annexure-2, order dated 17.02.2011 for the reason that if petitioner went abroad, he might not be available for trial. Learned counsel submitted that petitioner is prepared to return to his native place and attend the court as and when required if that is necessary. It is submitted by learned counsel that petitioner will be represented by counsel at the time of committal and trial. Learned Public Prosecutor raised an apprehension regarding non–availability of petitioner at the time of trial. 2. In the nature of the case there may not be serious dispute regarding identity and the learned counsel has assured that petitioner is Crl.MC No.664/2011 2 prepared to file affidavit that he will not dispute the identity at the time of trial. Then what is required is only to ensure that if in the course of trial presence of petitioner is required that has to be ensured. The Supreme Court in Basavaraj R. Patil & Others v. State of Karnataka and others [(2000) 8 SCC 740 (at page 743)] has stated the formalities to be followed when in the course of trial the accused is not in court and he is to be questioned under Section 313 of the Code of Criminal Procedure(for short, “the Code”). It is by now settled that at the time of committal physical presence of the accused is not necessary and that he could be represented by counsel. Learned Public Prosecutor submitted that investigation is almost over. Learned counsel for petitioner has given me a copy of the remand report dated 30.11.2010 in Crime No.414 of 2006 which states that potency test of petitioner is already conducted. In these circumstances I am inclined to allow this petition but subject to stringent conditions so that committal and trial proceedings are not stalled. Resultantly Annexure-2, order dated 17.02.2011 dismissing C.M.P.No. 593 of 2010 in Crime No. 414 of 2006 of Pooyappalli Police Station is set aside and that petition is allowed. Learned Judicial First Class Magistrate-II, Kottarakkara is directed to release the passport to the petitioner subject to the following conditions: Crl.MC No.664/2011 3 i. Petitioner shall execute bond for `.2,50,000/- (Rupees Two lakhs and Fifty thousand only) with two sureties for the like sum each undertaking to appear before the trial court or the Investigating Officer as the case may be as and when required. It is made clear that the bond executed as aforesaid is in addition to the bail bond already executed by petitioner. ii. Petitioner shall file affidavit before learned Magistrate undertaking that he will not dispute his identity in the course of trial and that in the committal proceeding as well as in trial of the case he will be represented by a counsel whose name, address and contact telephone number shall be mentioned in the affidavit. Petitioner shall say in the affidavit that in the course of committal proceeding and trial he will be represented by his counsel and that he shall not raise any contention that evidence was recorded in the case in his absence. He shall also state in the affidavit that his examination under Section 313 of the Code in case if to be done in his absence will be done in accordance with the decision in Basavaraj R. Patil & Others v. State of Karnataka and others (supra). Crl.MC No.664/2011 4 iii. After reaching the destination, petitioner shall inform his counsel and the Investigating Officer his contact telephone number and address abroad. This shall be done within two weeks from the date of his reaching the destination. iv. On compliance with the above conditions, (except the condition requiring petitioner to inform his address and contact telephone number abroad) learned Magistrate shall release the passport to the petitioner. THOMAS P.JOSEPH, Judge. cks