IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 Crl.MC.No. 1794 of 2011() --------------------------------- (CC 818/2009 DISPOSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS -II, HOSDURG) ........................... PETITIONER(S): ACCUSED --------------------------------------- KRISHNA MOORTHY @ MOORTHI,AGED 25 YEARS, S/O.LAKSHMANAN @ SUBRAMANYAN,PEELAMEDU, KALLAKURICHI TALUK,VILLUPURAM,TAMIL NADU. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1794 of 2011() ANNEXURE ANNEXURE 1 : COPY OF THE ORDER DT. 11.05.2011 IN CRL.M.P. NO. 923/2011 IN CRL. A. NO. 102/2011, PASSED BY THE COURT OF SESSIONS, KASARGOD // TRUE COPY // PA TO JUDGE smt THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ Crl.M.C. No.1794 of 2011 ~~~~~~~~~~~~~~~~~~ Dated this the 16th day of June 2011 O R D E R Petitioner is the 3rd accused in C.C.No.818 of 2009 which was disposed of by the learned Judicial First Class Magistrate-II, Hosdurg. Petitioner, along with other accused are said to have entered into a criminal conspiracy on 16.6.2009 to commit theft in the North Malabar Gramin Bank, Periya Branch. Accordingly the Bank was looted and ornaments and money were taken away. Petitioner was convicted for offences under Secs.457, 380, 461 and 120B r/w Sec.34 of the Indian Penal Code. He appealed to the learned Sessions Judge, Kasargode in Crl.A.No.102 of 2011 and requested that the sentence against him to be suspended. The request was rejected by Annexure-I order dated 11.5.2011. That order is under challenge. Learned counsel submitted that petitioner is in custody for more Crl.M.C. No.1794 of 2011 -: 2 :- than last two years. 2. Petitioner is (allegedly) involved in a serious case. Learned Sessions Judge found that it is not proper to suspend the sentence since petitioner was in judicial custody during trial and it is not stated why petitioner did not seek bail during that time. He hails from Tamilnadu and there is nothing on record to show that he has a fixed place of residence. Learned counsel submitted that petitioner has a ration card. But the address of petitioner given in the order under challenge is not very clear. 3. The power to grant suspension of sentence under Sec.389 of the Code of Criminal Procedure is discretionary, of course to be exercised judicially having regard to the various aspects of the matter. Here is a case where petitioner is (allegedly) involved in a serious case of looting a bank and taking away huge sum of money and ornaments. Learned Sessions Judge observed that the appeal is already posted for hearing and that the LCR has also been called Crl.M.C. No.1794 of 2011 -: 3 :- for. In this circumstance, I do not find reason to interfere with the discretionary order passed by the learned Sessions Judge. 4. At the same time, particularly as the request to suspend sentence has been turned down there must be expeditious disposal of the appeal. Learned Sessions Judge, who is hearing Crl.A.No.102 of 2011 is directed to expedite disposal of the appeal having regard to the fact that petitioner is in custody since the last two years. With the above direction, this Crl.M.C. is disposed of. THOMAS P. JOSEPH, JUDGE. Jvt