High Court Kerala High Court

Sreedhara Kurup vs The State Of Kerala on 8 January, 2010

Kerala High Court
Sreedhara Kurup vs The State Of Kerala on 8 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 66 of 2010()


1. SREEDHARA KURUP, AGED 60 YEARS,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REPRESENTED
                       ...       Respondent

2. V.P. THOMAS, S/O. PHILIP,

                For Petitioner  :SRI.C.P.PEETHAMBARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :08/01/2010

 O R D E R
             M.Sasidharan Nambiar, J.
            --------------------------
               Crl.M.C.No.66 of 2010
            --------------------------

                       ORDER

Petitioner is the accused in S.T.No.109/2008,

now pending as L.P.No.247/2008, on the file of

Judicial First Class Magistrate’s Court, Mattannur,

taken cognizance for the offence under Section 138

of Negotiable Instruments Act. As petitioner did

not appear, the case was transferred to the

register of long pending cases. A non bailable

warrant is pending. Petitioner filed C.M.P.No.

3940/2009 under Section 205 of Code of Criminal

Procedure for exemption from personal appearance.

By Annexure-A2 order, petition was dismissed.

2. Learned counsel appearing for the petitioner

was heard.

3. Annexure-A2 order shows that learned

Magistrate dismissed the petition on the ground

that the case now stands included in the register

of long pending cases and as provided under Section

CRMC 66/10 2

15(2) of Criminal Rules of Practice, unless the

accused person appears, the case cannot be removed

from the register of long pending cases and without

removing the same, petitioner is not entitled to

get exemption from personal appearance.

4. Rule 15 of Criminal Rules of Practice deals

with cases in which accused has absconded. Under

sub-rule(1) of Rule 15, when process has been

issued for the attendance of the accused and the

case remained pending for a long time, owing to

non-appearance of the accused and Magistrate is

satisfied that presence of the accused cannot be

secured within a reasonable time, Magistrate is

empowered to remove the case from the register of

cases and to enter it in the register of long

pending cases. Sub-rule(2) of Rule 15 provides that

if subsequently the accused person is apprehended

or appears or ceases to be insane, the case against

him shall be treated as a new case, entered

accordingly in the register of cases received and

CRMC 66/10 3

dealt with according to law.

5. It is in view of sub-rule(1) of Rule 15 of

Criminal Rules of Practice, learned Magistrate has

taken a view that presence of the petitioner cannot

be exempted before his actual appearance. Sub-rule

(2) of Rule 15 provides that after a case is

included in the register of long pending cases, if

the accused person is apprehended or appears or

ceases to be insane, the case is to be entered in

the register of cases as a new case. It does not

mean that appearance should be personal. If the

accused appears through counsel, when the case is

included in the register of long pending cases, it

cannot be said that it is not the appearance of the

accused for the purpose of sub-rule (2) of Rule 15

to enter it in the register of cases. If that be

so, learned Magistrate was not justified in

dismissing the petition on that ground. This Court

has already held that even after issuance of a non

bailable warrant, if the accused applies for

CRMC 66/10 4

exemption under Section 205 of Code of Criminal

procedure in a case taken cognizance for the

offence under Section 138 of Negotiable Instruments

Act, Magistrate is competent to grant exemption

under Section 205 of Code of Criminal Procedure.

5. In such circumstances, Annexure-A2 order is

quashed. Learned Magistrate to reconsider C.M.P.No.

3940/2009 and pass appropriate orders in accordance

with law.

Petition is disposed.

8th January, 2010 (M.Sasidharan Nambiar, Judge)
tkv