KUNJAMMA PARU Vs. STATE

JUDGEMENT

(1.) One Kandankali Bhaskaran was the 2nd accused in Sessions Case No. 5 of 1123 on the file of the Sessions Court, Alleppey. He along with others was convicted by the Additional Sessions Judge under S. 301 T.P.C. and sentenced to rigorous imprisonment for six months. He was also convicted under S. 324 T.P.C. and sentenced to rigorous imprisonment for another six months. Both these sentences were directed to run concurrently. He preferred an appeal before the Travancore High Court, against the conviction and sentence in Criminal Appeal No. 86 of 1123. The State preferred an appeal No. 125 of 1123 against him questioning the order of acquittal under other Sections for which he was tried. The legality of the sentence passed under S. 301 T.P.C., had also been questioned. This Court in Calendar Revision had issued notice because of the illegal sentence passed by the Additional Sessions Judge. Notice of the appeal and Calendar Revision was served on him fixing the date of hearing on 2.3.1124. By this time he had served the term of imprisonment and was released from the Jail. On 2.3.1124 he engaged an advocate Sri. K.N. Aiyappan Pillai to appear for him in the appeal filed by the State and the Calendar Revision Proceedings. His appeal and the appeals filed by his coaccused came up for hearing on 18.3.1124 along with the appeals filed by the State against all those persons. This 2nd accused was not present that day. His advocate filed a memo that he too had written to the party regarding the posting and that for some reasons not known the party had not appeared. A non bailable warrant was issued for the arrest and production of this Bhaskaran. That could not be executed as his whereabouts were not known. The appeals were not disposed of by the Travancore High Court till the integrated High Court of the Travancore and Cochin States was established with its seat at Ernakulam. All the appeals came up for hearing on 28.3.1950. The 4th accused's advocate alone was present. The appeals were heard and disposed of by a Division Bench, confirming the conviction under S. 301 T.P.C. As the sentence for the offence under S. 301 T.P.C. was imprisonment for life with or without forfeiture of property, the accused were directed to undergo rigorous imprisonment for life. Directions were also given in the Judgment to take steps for the arrest of the convicted persons if they were not in custody in order that the punishment awarded by the Court might be undergone by them. This Bhaskaran was subsequently arrested and sent to Jail where he is undergoing the sentence passed against him.

(2.) Now one Kunjamma Paroo who is said to be Bhaskaran's mother inlaw has filed this petition for issuing a writ in the nature of Habeas Corpus so that he may be brought before this Court and released. It is stated in her affidavit that after the establishment of the Travancore - Cochin High Court no notice of the posting of the appeals was given to Bhaskaran, that without any notice of the time and place of hearing the appeals were disposed of enhancing the sentence to rigorous imprisonment for life, that Bhaskaran was condemned without being heard, that the judgment was in violation of Ss. 349 and 350 Cr.P.C. (Tr.) and hence void in law, that the High Court had no jurisdiction to order the arrest, that the arrest was void ab initio and illegal and that Bhaskaran was to be released forthwith.

(3.) Notice of this petition was given to the State. A counter affidavit has been filed on behalf of the State. It was stated that this Court had no jurisdiction to issue the writ prayed for so as to enforce it in regard to a person who is being detained in custody by virtue of a proper and valid judgment of this Court that Sri. K.N. Aiyappan Pillai who had been engaged by Bhaskaran had not given up his engagement, that as was the practice the name of Sri Aiyappan Pillai was in the Cause List, that Bhaskaran, if he had any complaint, could have moved in this matter in the proper way before the proper authority, that the affidavit filed in support of the petition was not in accordance with law and that the petition has to be dismissed with costs.