IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 7338 of 2006()
1. SHIBI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.RAJIT
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/12/2006
O R D E R
V. RAMKUMAR, J.
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B.A.NO.7338 OF 2006
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Dt. DECEMBER 5, 2006
ORDER
The petitioner who is the 9th accused in Crime no.313/2002 of North
Parur Police Station for offences including one punishable under sec.307
I.P.C. and now pending before the Addl. Sessions Court (Fast Track No.II),
Ernakulam, as S.C.685/2004, inter alia seeks his release on bail in the above
case.
2. Heard the learned counsel for the petitioner and the learned Public
Prosecutor.
3. The facts leading to the filing of this petition can be summarized as
follows:-
The petitioner who was the 9th accused in the case, after committal of
the case to the Sessions Court was granted bail from the Sessions Court on
17.1.2004. The case was thereafter posted to various dates. On 20.8.2005
the petitioner was arrested in Crime No.227/2005 of Mararikkulam Police
Station. Therefore, on 27.8.2005 when the case was called before the
Sessions Court, the petitioner was absent and no application on his behalf
was filed. The learned Sessions Judge, therefore, forfeited the bond of the
petitioner and issued non-bailable warrants against him and notice to his
sureties. The case was posted to 3.10.2005 and thereafter to 4.11.2005. On
4.11.2005 it was reported to the court that the petitioner was in custody.
B.A.7338/06 2
Thereafter, the case was posted on 25.11.2005, 29.12.2005, 10.2.2006,
2.3.2006, 11.5.2006, 15.6.2006 and 14.7.2006. On none of those days,
notwithstanding the fact that the petitioner was reported to be in custody,
production warrant was issued for the production of the petitioner. On
2.9.2006 the matter was taken up and production warrant was issued for the
production of the petitioner on 13.10.2006, on which day the petitioner was
produced before court. The matter was thereafter being adjourned. In the
meanwhile, as per order dt. 1.12.2006 passed in B.A.No.6892/2006, this
court had granted bail to the petitioner in Crime No.227/2005 of
Mararikkulam Police Station. The grievance of the petitioner is that even
though he filed an application for recalling the production warrant against him
and for releasing him on bail either on the previous sureties or on fresh
sureties, the said petition is being adjourned at the request of the Public
Prosecutor presumably because the prosecution wants to challenge the order
passed by this court in B.A.No.6892/2006 before the Supreme Court.
4. If, as a matter of fact, the petitioner was in custody in another case
on 27.8.2005 when S.C.No.685/2004 was called before the Sessions Court,
it cannot be said that there was willful default in the form of a breach on the
part of the petitioner in not appearing before the court on that day. No
doubt, there was no request from his counsel as well. The fact remains that
both sides did not inform the court that the petitioner was already arrested
on 20.8.2005 in Crime No.227/2005. If this fact had been brought to the
notice of the Sessions Judge, the bail bond would not have been forfeited.
B.A.7338/06 3
Now that the court itself was informed subsequently that the petitioner was
in custody and his presence was secured by means of a production warrant,
it is only just and proper that the Sessions Court considers the request of the
petitioner to recall the production warrant and to order his release on bail if
his continued custody is not warranted in connection with any other case. It
is understood that the case is posted to 6.12.2006 in the Sessions Court.
5. Accordingly, this petition is disposed of directing the Addl. Sessions
Court (Fast Track – II), Ernakulam, to consider and dispose of the petitioner’s
application to recall the production warrant and to release him on bail either
on the previous sureties or on fresh sureties. It shall be open to the
petitioner to file a formal application for bail, in case such a petition has not
already been filed. The court below shall consider the petitioner’s case on
6.12.2006 itself and pass appropriate orders on his petition.
(V.RAMKUMAR, JUDGE)
Issue photocopy today itself on usual terms.
mt/-