Anandan vs State

C.T. Selvam, J.—These Revision Petitions challenge the order of IV Additional Sessions Judge, Chennai passed in Crl.M.P. No. 9342 & 9025 of 2012 in S.C. No. 60 of 1987 on 18.10.2012.

The petitioner, the third accused in the case pending trial in S.C. No. 60 of 1987 for offences under Sections 147, 148, 506(ii) IPC moved Crl.M.P. Nos. 9025 and 9342 of 2012 seeking recall of Non-Bailable Warrant issued against him as also exemption from appearance before the court below. Both such petitions have been dismissed, giving rise to these revisions.

Heard learned counsel for petitioner and learned Public Prosecutor. The respondent has filed a counter. This Court has considered the rival submissions and perused the typed set of papers.

This Court finds that the largest concern of the Court below in passing the orders under challenge was that the identity of the petitioner was doubtful. Such issue really does not arise in the case. At an earlier instance, the respondent-State has sought the petitioner's transfer under a transfer warrant and therein, the name of this petitioner had been shown as Anand @ Douglas Devanand. Therefore, the contention of the State that the petitioner informed himself to be Douglas Anandan as against the name of the accused being Anandan and therefore, there was some doubt about his identity really is not well founded.

Once this Court arrives at the above stated position, this Court has to take into consideration the order of this Court passed in Crl.M.P. Nos. 18861 of 2010 dated 08.12.2010, wherein, this Court specifically has held that the petitioner is not a proclaimed offender.

This Court is aware that the offences alleged against the petitioner and other accused are grave. Though gravity of the offence can be a consideration in directing recall or otherwise of a non-bailable warrant issued by a Court, the same cannot be the sole criterion. There is no dispute that the petitioner is a Minister at Sri Lanka and even during the pendency of the non-bailable warrant against him, the petitioner accompanied a visiting team of Srilankan officials to Chennai on 12.06.2010. At such instance, there has been no attempt to execute the Non-Bailable Warrant pending against him. The respondent-State not having sought to do so, is understandable.

In W.P. No. 12191 of 2010, the counter filed by the Central Government informs as under:-

...India does not have an Extradition Treaty with Sri Lanka. However, in exercise of the powers conferred by sub-section (1) of Section 3 of the Extradition Act 1962, there exists an Extradition Arrangement between the two Governments w.e.f. 1st September 1978 with Sri Lanka.

That it is also submitted to the Hon'ble Court that as an incumbent Cabinet Minister of Sri Lanka Mr. Douglas Devananda cannot be arrested during his visit to India and enjoys diplomatic immunity against an arrest referral request.

The apprehension of the petitioner, a person who has survived 13 attacks on his life cannot easily be ignored.

Given the attendant facts and circumstances, we are of the view that rather than taking a hyper-technical approach, ends of justice could be carried forward by adopting a course that would enable progress in the trial.

This Court has before it the affidavit of the petitioner, which informs that he would make himself available for video conferencing at the office of High Commissioner of India at Colombo, Sri Lanka whenever necessary.

In the circumstances, the order dated 18.10.2012 passed in Crl.M.P. Nos. 9025 of 2012 & 9342/2012 in S.C. No. 60 of 1987 on the file of IV Additional Sessions Court, Chennai is set aside subject to the following conditions:-:-

The petitioner shall now file an affidavit within a period of one month from the date of receipt of a copy of this order, notarised at Sri Lanka , undertaking therein:

(i) not to dispute his identity;

(ii) to appear through video conferencing at the High Commissioner of India at Colombo, Sri Lanka as and when required; and

(iii) to appear before the trial court when called upon to do so.

At every instance when the petitioner is required to appear before the trial Court in person, the respondent-State shall afford him appropriate protection.

This order is passed in the peculiar circumstances of the case given the diplomatic status and the effect execution of a non-bailable warrant issued against a Minister of the neighbouring State, may entail. This order shall not be seen as a precedent.

These Criminal Revisions shall stand allowed on the above terms. Consequently, connected miscellaneous petition is closed.