Smt.Misriya vs State on 18 October, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 3206 of 2007()


1. SMT.MISRIYA, AGED 45 YEARS,
                      ...  Petitioner

                        Vs



1. STATE
                       ...       Respondent

2. P.ABDUL AZEEZ, AGED 55 YEARS,

                For Petitioner  :SRI.M.SASINDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :18/10/2007

 O R D E R
                          R.BASANT, J.
                       ----------------------
                    Crl.M.C.No.3206 of 2007
                   ----------------------------------------
             Dated this the 18th day of October 2007

                              O R D E R

The petitioner, a woman, faces indictment in a prosecution

under Section 138 of the Negotiable Instruments Act.

Cognizance has been taken on 15/2/2007. The petitioner has not

entered appearance so far personally. She has entered

appearance through counsel. She has been filing applications to

excuse her absence from time to time. The learned Magistrate

has not allowed the said request and has now chosen to issue

non-bailable warrant against the petitioner. Such warrant of

arrest issued by the learned Magistrate is chasing the petitioner.

2. According to the petitioner, the petitioner is pregnant

now and is unable to appear before the learned Magistrate. The

warrant of arrest issued by the learned Magistrate, if executed,

would cause great hardship and prejudice to the petitioner. It is,

in these circumstances, prayed that appropriate directions may

be issued under Section 482 Cr.P.C.

3. The allegations against the petitioner is only under

Section 138 of the Negotiable Instruments Act. It is not

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necessary to invariably insist on the personal presence of the

accused in such a case. But the petitioner must certainly apply

for exemption from personal appearance under Section 205

Cr.P.C before the learned Magistrate. If the petitioner, a

woman, is pregnant and she is facing allegation only in a

prosecution under Section 138 of the Negotiable Instruments

Act, I can find no reason why such an application for personal

exemption would not be considered by the learned Magistrate.

But it is seen that the petitioner has not made such an

application so far. It is for the petitioner to apply for exemption

before the learned Magistrate. Thereupon the learned

Magistrate must pass appropriate orders. It is submitted that

now a warrant of arrest is issued against the petitioner and

unless the petitioner appears personally, her application for

exemption may not be considered. I find no reason to insist on

appearance of the petitioner personally before an application

under Section 205 Cr.P.C is considered. This is so, inspite of the

fact that a warrant of arrest has been issued. I am satisfied that

appropriate direction can be issued.

Crl.M.C.No.3206/07 3

4. In the result, this petition is allowed in part.

Following directions are issued:

i) Warrant of arrest issued against the petitioner shall

not be executed till 29/10/2007.

ii) In the meantime, the petitioner can appear before the

learned Magistrate through counsel and make an application

under Section 205 Cr.P.C.

iii) Appropriate orders on merits must be passed on such

application by the learned Magistrate.

                                           (R.BASANT, JUDGE)
jsr

                  // True Copy//    PA to Judge

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       R.BASANT, J.




         CRL.M.CNo.




            ORDER




21ST DAY OF MAY2007