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