IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.MC.No. 1924 of 2009() --------------------------------------- AGAINST THE ORDER IN CRL.M.P.NO.1745/09 DTD.8/06/09 IN CRL.M.C.708/09 OF SESSIONS COURT, KOZHIKODE. .................... PETITIONER(S): ACCUSED NO.4: -------------------------------------------------- MUSTHAFA @ MOHAMMED ASHRAF, S/O. ABBAS, AGED 31 YEARS, THAZHEKKANDY HOUSE, VELLALASSERY PO., VIA R.E.C, KOZHIKODE. BY ADVS. MR.M.SHAJU PURUSHOTHAMAN, MR.K.S.RAJESH. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING BY THE S.I.OF POLICE, MAVOOR. BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1924 OF 2009 =========================== Dated this the 29th day of June,2009 ORDER Petitioner is the fourth accused in Crime No103/2009 of Mavoor Police Station Prosecution case is that the accused committed offences under sections 143,144,147,148,323,324, 506(ii), 308 read with section 149 of Indian Penal Code. Under Annexure A order dated 28.5.2009in Crl.M.C.708/2009, learned Sessions Judge, Kozhikode granted bail to the petitioner. While granting bail, learned Sessions Judge on going through the Case Diary found that though an offence under section 308 of Indian Penal Code is also alleged it is not attracted. One of the conditions in granting bail was that petitioner shall surrender his passport. Petitioner surrendered his passport pursuant to Annexure A order. He thereafter filed Annexure B application before the learned Sessions Judge, to release the passport and to delete condition No.2 and 4 contending that he is working abroad and unless he is permitted to go abroad and for that purpose the passport is released, he will loose his employment and Crl.M.C.1924/2009 2 if that be so he cannot maintain his family as he has no other source of income. Under Annexure C order, learned Sessions Judge dismissed the application stating that he cannot be allowed to go abroad by deleting the conditions or releasing the passport, as in that case investigation and the trial will be protracted. This petition is filed under section 482 of Code of Criminal Procedure for deleting the said conditions in the bail order and to release the passport. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that petitioner is the only breadwinner of the family and he has been working in Saudi Arabia for the last eight years and he was employed to do menial jobs and he obtained a decent job only recently and unless he reports for the new employment before 1.6.2009 he will loose the employment and on his request the employer was pleased to extent the period till 15.6.2009 and if he is not permitted to go abroad he will loose his means of livelihood and therefore the passport is to be released and he is to be permitted to go abroad. 4. Learned Public Prosecutor submitted that the investigation is not yet completed and if the petitioner is allowed to go abroad, he will not be available for trial Crl.M.C.1924/2009 3 and in that case the case would be unnecessarily protracted and so petitioner may not be permitted to go abroad. 5. When petitioner is working abroad for the last several years and he is not permitted to rejoin, he would loose his employment. The question is whether for the reason that petitioner is involved in this case, he has to forego his means of livelihood. There is force in the submission of the learned Public Prosecutor that petitioner must be available for trial. In view of the findings of learned Sessions Judge in Annexure A order, it is to be taken that an offence under section 308 of Indian Penal Code will not lie. If that be the case, if the petitioner is not disputing his identity at the time of trial even if petitioner is not present the trial could be proceeded with. In such circumstance interest of justice warrants that petitioner is permitted to go abroad after releasing the passport. Annexure A order shows that petitioner was in custody and was sufficiently interrogated by the Police for the purpose of investigation. Petition is allowed. Petitioner is permitted to go abroad for his employment and for that purpose Magistrate is directed to release the passport to the petitioner on the following conditions. 1. Petitioner shall file an undertaking before the Crl.M.C.1924/2009 4 Magistrate that he will either appear and make himself available for trial or that he will file necessary application to dispense with his presence at the time of trial and would authorise his counsel to appear on his behalf declaring that presence of the counsel at the time of trial is to be treated as the presence of the petitioner and he will not dispute his identity at the time of trial and also will not challenge the validity of the evidence so recorded, for recording the evidence in the absence of the petitioner. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006