IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3058 of 2008()
1. M.K.ABDULLA
... Petitioner
Vs
1. STATE , REP. BY PAYYANUR POLICE.
... Respondent
For Petitioner :SRI.M.V.AMARESAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :13/08/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 3058 of 2008
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Dated this the 13th day of August, 2008
O R D E R
The petitioner faces indictment in a prosecution for
offences punishable, inter alia, under Sections 341 and 324 r/w.
149 I.P.C. Altogether there were six accused persons. Accused
1, 4 and 5 have already been tried, found not guilty and acquitted.
The petitioner was enlarged on bail. But as he has to leave India
in connection with his employment, he could not appear and take
part in the trial. The prosecution against accused 2, 3 and 6 still
remain. The petitioner has subsequently entered appearance. He
has been enlarged on bail and he has returned to his place of
employment abroad.
2. According to the petitioner he may not be available
personally before the court below if the matter is taken up for
trial early. This may entail further issue of coercive processes
against him. In these circumstances sufficiently early he has
come to this Court with a prayer that he may be permitted to be
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represented by his counsel at the stage of trial after exempting him
from personal appearance. He does not want to dispute his identity at
all in the trial.
3. The request of the petitioner appears to me to be most
legitimate. I have no reason to assume that such request will not be
accepted by the learned Magistrate. Insistence on appearance of the
accused before court on all dates of posting is not a fetish, but is
required only to satisfy the requirement of law that evidence should be
adduced only in the presence of the accused. On all other dates the
accused can be permitted to be represented by his counsel. On dates on
which evidence is to be adduced, if the accused applies to be
represented by his counsel and he does not dispute his identity, I have
no reason to assume that any Magistrate would insist on the personal
presence of the accused. No Magistrate should do the same.
Sufficient general directions have already been issued by this Court in
the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT
339).
4. It is for the petitioner/his counsel to apply before the learned
Magistrate and seek exemption from personal appearance and to permit
Crl.M.C.No. 3058 of 2008
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the petitioner’s counsel to conduct his case representing him without
insistence on his personal presence. The learned Magistrate must
consider such application in accordance with law and expeditiously.
No special or specific direction appears to be necessary, as I find no
reason why such application should not be considered by the learned
Magistrate on merits and in accordance with law.
5. This Crl.M.C. is dismissed subject to the above observations.
(R. BASANT)
Judge
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