IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(Crl.).No. 203 of 2010(Q)
1. SIVADASAN, AGED 25 YEARS,
... Petitioner
Vs
1. BINOD, AGED 29 YEARS,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.MATHEW ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/10/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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O.P.(Crl).No. 203 OF 2010
===========================
Dated this the 21st day of October,2010
JUDGMENT
Petitioner is the accused in S.T.113/2010
on the file of Judicial First Class Magistrate-
II taken cognizance for the offence under
section 138 of Negotiable Instruments Act on a
complaint filed by the first respondent.
According to petitioner, after closing the
evidence of the first respondent, learned
Magistrate directed the petitioner to be
present in person and as the offence alleged
is only under section 138 of Negotiable
Instruments Act, learned Magistrate should not
have insisted for the presence of the
petitioner. As petitioner did not appear as
directed, learned Magistrate has already issued
a non bailable warrant. This petition is filed
under Article 227 of the Constitution of India
O.P.(Crl.) 203/2010 2
for a direction to the Magistrate not to insist for
the personal appearance of the petitioner for
questioning under section 313 of Code of Criminal
Procedure.
2. Learned counsel appearing for the
petitioner was heard.
3. Learned counsel submitted that petitioner
had filed an application under section 205 of Code
of Criminal Procedure and his presence was
dispensed and in such circumstances, learned
Magistrate is not justified in insisting for the
presence of the petitioner.
4. Normally in a case taken cognizance for the
offence under section 138, if an application is
filed, learned Magistrate not to insist for the
personal presence of the accused for questioning
under section 313 of Code of Criminal Procedure, if
his presence was dispensed with earlier on an
application filed under section 205 of Code of
Criminal Procedure. If after allowing an
application under section 205 Cr.P.C., the counsel
O.P.(Crl.) 203/2010 3
for the petitioner as promised did not appear
before the learned Magistrate, it is possible that
learned Magistrate insisted for the presence of
the accused. From the material it is not possible
to hold that learned Magistrate directed personal
presence of the accused illegally.
Petition is disposed making it clear that
learned Magistrate not to insist for the presence
of the petitioner for questioning under section 313
of Code of Criminal Procedure, if his presence was
dispensed under section 205 Code of Criminal
Procedure earlier. Even if it was not permitted
earlier, if a petition is filed under section 205
Code of Criminal Procedure learned Magistrate to
consider the same in accordance with law and pass
appropriate orders. If petitioner files an
application for recalling the non bailable
warrant, learned Magistrate to pass appropriate
order in accordance with law.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
O.P.(Crl.) 203/2010 4
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006