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P.V. Sivadasan vs State Of Kerala on 16 November, 2009

Kerala High Court
P.V. Sivadasan vs State Of Kerala on 16 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3510 of 2009()


1. P.V. SIVADASAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.M.V.AMARESAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :16/11/2009

 O R D E R
              M.SASIDHARAN NAMBIAR,J.

              ------------------------------------------
               CRL.M.C.NO. 3510 OF 2009
              ------------------------------------------

             Dated       16th     November 2009


                           O R D E R

Petitioner is the second accused in

C.C.463/2007 on the file of Judicial First Class

Magistrate, Payyannur taken cognizance for the

offences under Sections 406, 420, 468, 471 read with

Section 34 and 120B of Indian Penal Code. Petitioner

filed Annexure-1 application (C.M.P.4899/2008) for

exemption from personal appearance for recording the

plea as well as answering the question under Section

313 of Code of Criminal Procedure stating that he was

unemployed for a long time and finally got

employment in Gulf countries and in such

circumstances, he may not be in a position to appear

personally on all occasions and therefore, exemption

is to be granted. By Annexure-2 order dated 4/9/2008,

learned Magistrate allowed the application in part

granting exemption from personal appearance for the

time being and directing that he shall appear as and

when directed. It was also found that even the charge

Crmc 3510/09
2

is not framed and therefore, petitioner is at liberty

to move at the appropriate stage. Petitioner

thereafter filed Annexure-3 petition stating that he

has been granted permission from personal appearance

and permission was not granted to answer the question

under Section 313 of Code of Criminal Procedure and

therefore, he is to be permitted to plead and to

answer the question under Section 313 of Code of

Criminal Procedure. By Annexure-4 order petition was

dismissed on the ground that petitioner was not granted

permanent exemption and petition filed earlier does

not contain necessary averments to grant permanent

exemption and in such circumstances, petitioner cannot

be permitted to appear through the pleader for

recording his plea. This petition is filed to quash

Annexure-4 order.

2. Learned counsel appearing for the

petitioner and learned Public Prosecutor were heard.

3. Though learned counsel submitted that

permanent exemption was granted under Annexure-2 order,

as is clear from the order personal appearance of the

petitioner was dispensed only for the time being making

it clear that question of exemption for recording the

Crmc 3510/09
3

plea would arise only at a later stage and petitioner

is at liberty to apply for the same at the appropriate

stage. Therefore, petitioner was not justified in

filing Annexure-3 petition, as if he was granted

permanent exemption, except for recording the plea

and to answer the questions under Section 313 of the

Code of Criminal Procedure. But there is force in the

submission that learned Magistrate was not justified in

issuing non bailable warrant when his presence was

dispensed under Section 205 earlier for the time

being. Petitioner could very well be permitted to

record his plea, after framing the charge and personal

presence of the petitioner need not be insisted.

4. Question whether exemption is to be

granted under Section 205 at the time of recording the

evidence is necessarily to be considered by the

Magistrate on a proper application filed at that time.

Exemption could be granted only if the petitioner files

an affidavit undertaking that evidence could be

recorded in his absence, treating the presence of his

counsel as his presence and he will not challenge the

evidence so recorded before that court or before

appellate court or revisional court.

Crmc 3510/09
4

Petition is disposed directing Judicial First

Class Magistrate, Payyannur to re-call warrant issued

against the petitioner/second accused in C.C.463/2007

and to permit the petitioner to plead, without

personal presence, through his counsel. Question

whether exemption under Section 205 of Code of

Criminal Procedure is to be granted at the time of

recording the evidence is to be considered by the

Magistrate on a proper application filed at that stage.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.

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