IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 66 of 2010()
1. SREEDHARA KURUP, AGED 60 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. V.P. THOMAS, S/O. PHILIP,
For Petitioner :SRI.C.P.PEETHAMBARAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/01/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.66 of 2010
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ORDER
Petitioner is the accused in S.T.No.109/2008,
now pending as L.P.No.247/2008, on the file of
Judicial First Class Magistrate’s Court, Mattannur,
taken cognizance for the offence under Section 138
of Negotiable Instruments Act. As petitioner did
not appear, the case was transferred to the
register of long pending cases. A non bailable
warrant is pending. Petitioner filed C.M.P.No.
3940/2009 under Section 205 of Code of Criminal
Procedure for exemption from personal appearance.
By Annexure-A2 order, petition was dismissed.
2. Learned counsel appearing for the petitioner
was heard.
3. Annexure-A2 order shows that learned
Magistrate dismissed the petition on the ground
that the case now stands included in the register
of long pending cases and as provided under Section
CRMC 66/10 2
15(2) of Criminal Rules of Practice, unless the
accused person appears, the case cannot be removed
from the register of long pending cases and without
removing the same, petitioner is not entitled to
get exemption from personal appearance.
4. Rule 15 of Criminal Rules of Practice deals
with cases in which accused has absconded. Under
sub-rule(1) of Rule 15, when process has been
issued for the attendance of the accused and the
case remained pending for a long time, owing to
non-appearance of the accused and Magistrate is
satisfied that presence of the accused cannot be
secured within a reasonable time, Magistrate is
empowered to remove the case from the register of
cases and to enter it in the register of long
pending cases. Sub-rule(2) of Rule 15 provides that
if subsequently the accused person is apprehended
or appears or ceases to be insane, the case against
him shall be treated as a new case, entered
accordingly in the register of cases received and
CRMC 66/10 3
dealt with according to law.
5. It is in view of sub-rule(1) of Rule 15 of
Criminal Rules of Practice, learned Magistrate has
taken a view that presence of the petitioner cannot
be exempted before his actual appearance. Sub-rule
(2) of Rule 15 provides that after a case is
included in the register of long pending cases, if
the accused person is apprehended or appears or
ceases to be insane, the case is to be entered in
the register of cases as a new case. It does not
mean that appearance should be personal. If the
accused appears through counsel, when the case is
included in the register of long pending cases, it
cannot be said that it is not the appearance of the
accused for the purpose of sub-rule (2) of Rule 15
to enter it in the register of cases. If that be
so, learned Magistrate was not justified in
dismissing the petition on that ground. This Court
has already held that even after issuance of a non
bailable warrant, if the accused applies for
CRMC 66/10 4
exemption under Section 205 of Code of Criminal
procedure in a case taken cognizance for the
offence under Section 138 of Negotiable Instruments
Act, Magistrate is competent to grant exemption
under Section 205 of Code of Criminal Procedure.
5. In such circumstances, Annexure-A2 order is
quashed. Learned Magistrate to reconsider C.M.P.No.
3940/2009 and pass appropriate orders in accordance
with law.
Petition is disposed.
8th January, 2010 (M.Sasidharan Nambiar, Judge)
tkv