IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1924 of 2009()
1. MUSTHAFA @ MOHAMMED ASHRAF, S/O. ABBAS,
... Petitioner
Vs
1. STATE REP.BY THE PUBLIC PROSECUTOR,
... Respondent
For Petitioner :SRI.M.SHAJU PURUSHOTHAMAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/06/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 1924 OF 2009
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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.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006