IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2852 of 2008()
1. SREEKUMAR, RETNAJALIYIL VEEDU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.K.SASIKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :29/07/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 2852 of 2008
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Dated this the 29th day of July, 2008
ORDER
The short grievance of the petitioner is that his
application for exemption and his application for discharge
filed before the learned Sessions Judge as Annexures-A3 and
A4 have been dismissed without proper consideration.
2. The petitioner faces indictment in a prosecution for
offences punishable, inter alia, under Secs.307 and 324 read
with Sec.149 IPC. He is the 9th accused. All the co-accused
have already been tried, found not guilty and acquitted. The
case against the petitioner was split up and coercive processes
were issued against the petitioner. The petitioner came to this
Court with Crl.M.C.No.795/08. Another Bench of this Court
disposed of the petition with observations. In compliance with
the said observations, the petitioner surrendered before
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learned Sessions Judge and was enlarged on bail. Thereafter,
the case was posted. When the case was posted to 6/6/08, the
petitioner filed Annexures-A3 and A4 applications. It was prayed
that the petitioner may be discharged. It was further prayed
that the petitioner may be exempted from personal appearance.
The petition seeking exemption from personal appearance was
disposed of by Annexure-A5 order which reads: “Disallowed”.
The petition seeking discharge was disposed of by Annexure-A6
order which reads as follows:
“No objection filed. Heard. Petitioner
has been absenting and his bail bond stands
cancelled. This petition filed in absentia is
not maintainable and it is hereby
dismissed.”
3. The learned counsel for the petitioner submits that
both petitions have not been disposed of properly by the learned
Sessions Judge. The case stood posted only for hearing on the
question of discharge and on that day the personal appearance
of the petitioner was totally unnecessary. The learned Sessions
Judge had no valid reason whatsoever to dismiss the application
to excuse his absence on that date of posting as the proceedings
could have gone further even without the personal presence of
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the petitioner, submits counsel. The presence of the petitioner’s
counsel was absolutely sufficient for hearing on the question of
discharge under Sec.227 Cr.P.C. A plea for discharge could
certainly have been advanced in the absence of the petitioner
when he was represented by his counsel, the petitioner having
already entered appearance and having been enlarged on bail.
In these circumstances, the dismissal of Crl.M.P.No.686/08 with
a non- speaking order – disallowed, is certainly not justified.
The same warrants interference.
4. Coming to the prayer for discharge even in the absence
of an application for discharge from the petitioner, such plea for
discharge has to be considered. The obligation of the court to
consider whether charges deserve to be framed or not does not
depend on an application to be filed by the petitioner/indictee.
Even without any such application, the learned Sessions Judge is
obliged to consider the question whether charges deserve to be
framed or not under Sec.227/228 Cr.P.C. The reason shown for
rejection of the petition claiming discharge is also absolutely
unjustified.
5. I am, in these circumstances, satisfied that Annexures-
A5 and A6 orders and all further proceedings on the basis of
such orders passed deserve to be interfered with. This Crl.M.C.
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deserves to be allowed.
6. In the result:
(a) This Crl.M.C. is allowed.
(b) The order dated 6/6/08 in Crl.M.P.No.686/08 is set
aside.
(c) The order dated 6/6/08 in Crl.M.P.No.681/08 is also set
aside.
(d) All further action taken on the basis of those orders
shall also stand set aside.
(e) The learned Sessions Judge shall now consider the plea
for discharge without insisting on the personal presence of the
petitioner if he is represented by a counsel.
7. Hand over a copy of this order to the learned counsel for
the petitioner.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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