IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3289 of 2009()
1. C.ABDUL SATHAR, AGED YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.MANJERI SUNDERRAJ
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/10/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 3289 OF 2009
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Dated 13th October 2009
O R D E R
Petitioner is the first accused in
S.C.7/2009 on the file of Assistant Sessions court,
Kozhikode. Offences alleged are under Sections 111 and
306 read with Section 34 of Indian Penal Code. This
petition is filed under Section 482 of Code of
Criminal Procedure for a direction to the Assistant
Sessions court to consider Ext.P7 petition filed by
him for exemption from personal appearance.
2. Learned counsel appearing for the
petitioner was heard.
3. Learned counsel submitted that
petitioner will not dispute the identity and evidence
in the case could be recorded in the presence of his
counsel and second accused the son of the petitioner
would also be available and petitioner will not
challenge the evidence so recorded and in such
circumstances, learned Assistant Sessions Judge may
be directed to dispense presence of the petitioner.
CRMC 3289/09
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4. Section 317 of Code of Criminal
Procedure enables Sessions Judge on his satisfaction,
for reasons to be recorded, that personal attendance
of the accused before the court is not necessary in
the interest of justice, to dispense with his
attendance and proceed with the trial in his absence
and direct personal attendance of the accused at a
later stage.
5. I find no reason to believe that if a
proper petition is filed under Section 317 of Code of
Criminal Procedure by an accused, undertaking that on
his behalf his counsel will appear on all the dates
posted for trial and evidence could be recorded in
his absence, treating presence of his counsel as his
presence and that he will not challenge the evidence,
so recorded, before that court or before the
appellate court or the revisional court, Assistant
Sessions Judge will not invoke the power available
under Section 317 of Code of Criminal Procedure and
will not grant exemption from appearance. As
petitioner has already enlarged on bail, Assistant
CRMC 3289/09
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Sessions Judge need not insist for the presence of
the accused, for the purpose of filing such a
petition or for its hearing.
Petition is disposed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.