IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 538 of 2007()
1. M.SHAHUL HAMEED, AGED 72 YEARS,
... Petitioner
Vs
1. T.RUKIYA, W/O K.P.MOHAMEDALI,
... Respondent
For Petitioner :SRI.MOHAN JACOB GEORGE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :21/03/2007
O R D E R
R. BASANT, J.
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Crl.M.C.No. 538 of 2007
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Dated this the 21st day of March, 2007
O R D E R
The short grievance of the petitioner, who faced indictment in
a prosecution under Section 138 of the N.I. Act, is that the exemption
granted in his favour under Section 205 Cr.P.C. has been cancelled
unnecessarily and unjustifiably by the learned Magistrate as per
order dt. 18.1.2007.
2. Report of the learned Magistrate was called for. The
learned Magistrate reports that exemption happened to be cancelled
only because the accused person and his counsel were both absent on
the days of posting. The order sheet has been placed before court for
perusal. The exemption is seen cancelled on 18.1.07. On that day the
complainant was absent. The Power of Attorney holder was present.
There is no noting that the accused was not represented by his
counsel. In fact the order dt. 18.1.07 in the order sheet reads as
follows:
“18.1.07: Complainant absent. Power of Attorney
holder present. Exemption of accused u/s. 205 Cr.P.C.
cancelled. For evidence listed to 1.3.2007.”
Crl.M.C.No. 538 of 2007
2
3. Having gone through the order sheet maintained by the learned
Magistrate, I do not find any justification in the mechanical, and what
appears to be automatic, cancellation of exemption under Section 205
Cr.P.C. granted in favour of the accused. I am satisfied that the course
adopted by the learned Magistrate is incorrect and not justifiable. Merely
because the case is posted for evidence, exemption granted to an accused
does not deserve to be mechanically cancelled. I am, in these
circumstances, satisfied that cancellation of exemption was not justified
and the said order warrants and deserves interference.
4. I do however note that the learned Magistrate has not issued any
coercive process against the accused. In these circumstances it need only
be directed that the cancellation of exemption shall stand set aside.
5. This Crl.M.C. is hence allowed. Cancellation of exemption under
Section 205 Cr.P.C. shall stand set aside. The exemption shall continue.
For reasons to be recorded, the learned Magistrate shall certainly be entitled
to direct the accused persons to appear on any specified date of posting.
(R. BASANT)
Judge
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