IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3919 of 2006()
1. RAFEEQ, S/O.MUHAMMED,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.C.P.PEETHAMBARAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :29/11/2006
O R D E R
R.BASANT, J
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Crl.M.C.No.3919 of 2006
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Dated this the 29th day of November 2006
O R D E R
The petitioner faces indictment in a prosecution under Section
498-A read with 109 I.P.C. The petitioner is the husband of the
defacto complainant. It is his case that the matter has been settled
with the defacto complainant and she has not tendered any evidence
incriminating him. But when the matter was posted for 313
examination, the accused could not appear before the learned
Magistrate as compulsions of his employment abroad obliged him to
proceed to his place of employment. He, through his counsel, made
an application that he may be exempted from personal appearance at
the stage of 313 examination and his counsel may be permitted to
answer the questions. Unfortunately, when the petition came up for
hearing, the petitioner and his counsel were not present. The same
was dismissed and warrant of arrest was issued against the petitioner
and notice was ordered to the sureties. The petitioner was obliged to
leave India for the place of his employment abroad. The petitioner’s
counsel thereupon filed yet another application as Annexure A5 before
the learned Magistrate. No orders have been passed in that
application. It is submitted that the Magistrate appears to feel that
Crl.M.C.No.3919/06 2
the earlier application having been dismissed, the learned Magistrate
cannot consider the request again.
2. If the submissions made at the Bar were correct and the
learned Magistrate will have to verify that, I find no reason why the
learned Magistrate should not be directed to consider Annexure A3
order afresh, ignoring the fact that the petitioner and his counsel
were not present when the case was called.
3. In the result, this Criminal Miscellaneous case is allowed
in part. The order dated 31/10/2006 in C.M.P.No.3312/2006 is set
aside and the learned Magistrate is directed to consider the matter
afresh on the next date of posting. The learned counsel for the
petitioner shall be entitled to be heard on that day. I may incidentally
mention that if there is no incriminating circumstances against the
petitioner revealed in evidence at all, ritualistic examination of the
accused under Section 313 Cr.P.C may not be necessary in the facts
and circumstances of this case. Of course, it is for the learned
Magistrate to consider that aspect, at the first instance.
(R.BASANT, JUDGE)
jsr
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R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006