IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 Crl.MC.No. 1682 of 2011() ---------------------- CRIME NO. 35/2003 OF EXCISE RANGE, AMARAVILA ............... PETITIONER / 2ND ACCUSED : -------------------------------------------- K. VIJAYAN, S/O. KARUNAKARAN, AGED 45 YEARS, KAMALALAYAM, VELLARADA P.O., PANACHAMOODU P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.GEORGE MECHERIL RESPONDENTS / STATE : ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P JOSEPH, J. ------------------------- Crl.M.C.No.1682 of 2011 -------------------------- Dated this the 08th day of June, 2011 ORDER Petitioner is second accused in Crime No.35 of 2003 of Amaravila Excise Range and S.C.No.2072 of 2006 of the Court of learned Special Judge for the Trial of Abkari Cases, Neyyattinkara. He was released on bail and the case was being posted for trial before the learned Judge. On 01.04.2011, on a day the case was not posted for recording witness (as the learned counsel submits) petitioner was absent, his counsel applied but the application was dismissed and non bailable warrant was issued to him as per order dated April 01, 2011. On April 06, 2011 petitioner did not appear or surrender (as the case may be) and thereon his bail bond was cancelled and non bailable warrant was repeated. Proceeding was initiated against the sureties as well. In challenge of the said orders petitioner approached this Court with Crl.M.C.No.1499 of 2011. This Court after hearing learned Public Prosecutor as well, disposed of the criminal miscellaneous case as per Annexure-A3, oder dated May 25, 2011. This Court directed that warrant of arrest issued to the Crl.M.C.No.1682 of 2011 2 petitioner will stand in abeyance for a period of one month from the date of the order or till petitioner appears before learned Additional Sessions Judge and seek regular bail/recall of warrant, whichever is earlier. Referring to the apprehension of petitioner that on appearance he may be remanded to judicial custody this Court observed in the order that, “having regard to the fact that final report has already been filed, I do not think that a remand of petitioner is necessary”. I also directed learned Additional Sessions Judge to dispose of the application for bail or recall of the warrant if preferred by the petitioner, “having regard to the circumstances stated and observations made above” and pass appropriate orders on such application as early as possible. 2. Obviously on the strength of the order passed by this Court petitioner appeared before learned Additional Sessions Judge and moved application for bail. Learned Additional Sessions Judge by Annexure-A4, order passed following order, “Bail application dismissed. Accused remanded to District Jail Thiruvananthapuram till Crl.M.C.No.1682 of 2011 3 10.06.2011”. The said order is under challenge in this proceeding. Learned counsel submits that learned Additional Sessions Judge has not considered the order passed by this Court in Annexure-A3 referred above for the reason that there was no water mark seal on the order. I have heard learned Public Prosecutor also. 3. Assuming that learned Additional Sessions Judge had any doubt on the genuineness of the copy of order produced before learned Additional Sessions Judge, it was appropriate that learned Additional Sessions Judge to contact the Registrar of this Court and ascertain whether the said order was passed by this Court, rather than not referring to the order at all. 4. Observations were made in Annexure-A3, order so that learned Judge will consider the same when an application is moved before the learned Additional Sessions Judge. No doubt, it was within the power and jurisdiction of learned Additional Sessions Judge to dispose of the application for bail in the appropriate manner but, there was a duty cast on the learned Additional Sessions Judge to consider the observations made by this Court and particularly when Annexure-A3, order directed that learned Additional Sessions Judge shall consider Crl.M.C.No.1682 of 2011 4 application for bail or recall of warrant “having regard to the circumstances stated and observations made above”. I find from Annexure-A4, order which is under challenge that learned Additional Sessions Judge has not even referred to Annexure-A3, order passed by this Court which, to say the least, is unfortunate and instead by a cryptic order learned Additional Sessions Judge has sent the petitioner to the prison. I must bear in mind that it is not as if the case was posted for examination of the prosecution witness on which day petitioner failed to appear. As the learned counsel tells me, on 01.04.2011 the case was not posted for examination of the witness. I do not find any justifiable reason why, in a case where final report has already been filed, the case was committed for trial and it was pending trial before the Court, learned Additional Sessions Judge thought that petitioner has to be remanded to judicial custody. I can understand if some valid reason was assigned by the learned Additional Sessions Judge for not granting bail. Instead, Annexure-A4, order says that “Bail application dismissed”. The order is illegal and unsustainable. I do not intend to sent petitioner to the remedy of filing another application for bail in this Court having regard to the illegality in the order passed by the learned Crl.M.C.No.1682 of 2011 5 Additional Sessions Judge. Resultantly this criminal miscellaneous case is allowed in the following lines: (i) Annexure-A4, order dismissing Crl.M.P.No.463 of 2011 (application for bail) is quashed. (ii) The application for bail as well as Crl.M.P.No.464 of 2011 (for recall of warrant) will stand allowed. (iii) Petitioner is granted bail. He shall execute bond for `.15,000/- (Rupees Fifteen Thousand Only) with two sureties for the like sum each before the learned Additional Sessions Judge, Neyyattinkara. (iv) I make it clear that it is open to the petitioner to offer the very same sureties on whose bond petitioner was already released on bail as sureties before the learned Additional Sessions Judge. (v) On production of this order learned Additional Sessions Judge shall allow the petitioner to execute bond and shall forthwith issue a release order. THOMAS P JOSEPH JUDGE Sbna/