IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Crl.MC.No. 1701 of 2011() ------------------------- CRL.MP NO.840/2011 IN CRL.M.C NO.363/2011 OF ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM SC NO.1243/2007 OF ASSISTANT SESSIONS COURT, ATTINGAL CRIME NO.490/2006 OF MANGALAPURAM POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- SHIBU, S/O.MOHAMMED BASHEER, VARUVILAKATHU VEEDU, T.C.18/1048, PUTHENKADA JUNCTION, THIRUMALA, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.1701/2011 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-A TRUE COPY OF THE FINAL REPORT IN SESSIONS CASE NO.1243/2007 ANNEXURE-B TRUE COPY OF ORDER IN CRL.MC NO.363/2011 DATED 23.3.2011 OF THE SESSIONS COURT, THIRUVANANTHAPURAM ANNEXURE-C TRUE COPY OF THEPETITION, CRL.MP. NO.840/2011 IN CRL.MC NO.363/2011 DATED 3.5.2011 ANNEXURE-D TRUE COPY OF LETTER FROM PETITIONER'S EXMPLOYER ANNEXURE-E TRUE COPY OF THE ORDER IN CRL.MP NO.840/2011 IN CRL.MC NO.363/2011 DATED 9.5.2011 OF THE SESSIONS COURT, THIRUVANANTHAPURAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1701 of 2011 -------------------------------------- Dated this the 21st day of June, 2011. ORDER Petitioner is accused in S.C.No.1243 of 2007 of the court of learned Assistant Sessions Judge, Attingal for offence punishable under Section 304 Part II of the Indian Penal Code (for short, “the IPC”) (Petitioner has a case that only a charge under Section 304A of IPC would lie) arising from the final report in Crime No.490 of 2006 of Mangalapuram Police Station. The alleged incident occurred on 11.08.2006 and since the case was committed, petitioner was attending the court of learned Assistant Sessions Judge, Attingal. In the meantime petitioner got employment and went abroad. So, there was no appearance in court after 30.08.2009. Thereon learned Assistant Sessions Judge cancelled the bail and issued non-bailable warrant to the petitioner. Petitioner surrendered and applied for bail. Learned Assistant Sessions Judge dismissed the application. Petitioner approached learned Sessions Judge, Thiruvananthapuram who by Annexure-B, order dated March 23, 2011 granted bail to the petitioner subject to conditions including that petitioner shall surrender his passport in the trial court. Accordingly petitioner surrendered his passport. Now, in connection with employment he has to go abroad and require the passport. Petitioner moved Crl.M.P.No.840 of 2011 before learned I Additional Sessions Judge, Thiruvananthapuram seeking release of passport. That petition was dismissed by Annexure-E, order dated May 9, 2011 which is under Crl.MC No.1701/2011 2 challenge. Learned counsel has invited my attention to Annexure-D, letter issued by the H.R.Manager of the company where petitioner is (allegedly) working stating that the company is prepared to grant leave to petitioner in connection with the proceeding in court. Learned counsel submitted that petitioner is prepared to abide by any condition, petitioner has no dispute regarding identity and is prepared to file affidavit accordingly in the trial court. It is also submitted that the plea of petitioner could be recorded and his examination under Section 313 of the Code of Criminal Procedure could be done through counsel. I have heard learned Public Prosecutor also. 2. It is seen from Annexure-D, letter that petitioner is employed abroad and his employer is willing to grant him leave as and when required to appear in court. The incident occurred on 11.08.2006, petitioner was released on bail during crime stage and the case was committed to the court of Sessions in the year 2007. Before the trial court also petitioner appeared through counsel and non-appearance was only after 30.08.2009 after petitioner got employment abroad. In these circumstances I am inclined to grant petitioner permission to go abroad but, subject to conditions. Crl.MC No.1701/2011 3 Resultantly this Criminal Miscellaneous Case is allowed and Annexure-E, order passed by learned I Additional Sessions Judge (Vacation Judge), Thiruvananthapuram rejecting request of petitioner to release his passport is set aside. That application will stand allowed. The passport shall be released to petitioner subject to the following conditions: i. Petitioner shall appear before the learned Assistant Sessions Judge as and when required by that court. ii. As offered by petitioner, his plea shall be recorded through his counsel, trial can proceed in the absence of petitioner and in the presence of his counsel and petitioner shall file affidavit in the trial court (as offered by him) that he is not disputing his identity as the alleged offender. iii. Petitioner shall within two weeks of his reaching destination abroad inform the Investigating Officer in writing about his place of stay and contact telephone number if any. Crl.MC No.1701/2011 4 iv. Petitioner shall execute a bond for Rupees two lakhs with two sureties for the like sum each to the satisfaction of learned Assistant Sessions Judge, Attingal undertaking to appear before learned Assistant Sessions Judge as and when directed. On execution of bond and filing affidavit as aforesaid passport shall be released to the petitioner. v. Questioning of petitioner could be conducted through his counsel as stated by the Supreme Court in Basavaraj R. Patil & others v. State of Karnataka and others ((2000) 8 SCC 740). THOMAS P.JOSEPH, Judge. cks