IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2717 of 2004()
1. JOSE MATHEW, S/O.MATHAI, PUNNASSERIL
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :11/01/2007
O R D E R
K.R. UDAYABHANU, J
============================
CRL. M.C. NO. 2717 OF 2004
============================
Dated this the 11th day of January 2007
O R D E R
The petitioner, who is the 1st accused in C.C. No. 1002/2004
in the court of Judicial First Class Magistrate, Thodupuzha, has
sought for setting aside the order of the court below rejecting his
prayer for granting exemption from personal appearance vide
application filed under section 317 Cr.P.C. It is the case of the
petitioner that he is employed in the Middle East and he is unable
to be present in the the court right now and if he leaves his
workspot he would be rendered unemployed. The rest of the
accused were acquitted. The charge is under sections 498 A,
420, 380, 109, 499 r/w 34 IPC. It is submitted that he had
surrendered before the court below on 21.07.2004 and was
enlarged on bail. He was also present on the subsequent posting
date. But thereafter he had to join duty and hence could not be
present. It was in the above circumstances that he has filed an
CRL. M.C. NO. 2717 OF 2004
:2 :
application for exemption from personal appearance. It is
submitted that he shall appear whenever specifically ordered. He
wants to plead not guilty through counsel.
2. The court below has dismissed the application on the
ground that the case involved is with respect to a serious offence
and hence his attitude of leaving country without getting
permission from the court was improper. The court has noted
the decision of Superme Court in Bhaskar Industries Ltd., v.
B
hiwani Denim & Apparels Ltd., (2
001 (3) KLT 307 (SC)) as
well as the decision of this Court in Noorjahan v. Moideen
(2000 (2) KLT 756), but was not inclined to follow the same. I
find that the decision of Supreme Court as well as of this Court,
the above cited, is clearly to the effect that even in a warrant
case exemption can be granted provided that the
petitioner/accused undertakes to the satisfaction of the court that
he would not dispute his identity and that the counsel on his
behalf would be present in court and that he has no objection in
taking evidence in his absence. The petitioner has filed an
application undertaking as above. The offence under section 498
A is the offence involved in Noorjahan’s case (op. cit) as well.
CRL. M.C. NO. 2717 OF 2004
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3. In the circumstances, the order of the court below is
herewith set aside. The court below is directed to permit the
counsel to represent the petitioner and plead guilty on his behalf
and further proceed with the trial.
The Crl. M.C. is allowed accordingly.
K.R. UDAYABHANU, JUDGE.
RV
