IN THE HON’BLE HIGH COURT OF JUDICATURE AT HYDERABAD HON’BLE SRI JUSTICE G.BHAVANI PRASAD FRIDAY, THE TWENTY FIFTH DAY OF SEPTEMBER, TWO THOUSAND AND NINE Crl. PETITION NO.8011 OF 2009 Between: L. V. Sivalingam and 3 others. … Petitioners And: The State of A.P. rep. by its Public Prosecutor .. Respondent. HON’BLE SRI JUSTICE G.BHAVANI PRASAD Crl. PETITION NO.8011 OF 2009 ORDER: Heard Sri T. Bali Reddy, learned Senior Counsel for the petitioner, and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the sole respondent. The petitioners were aggrieved by the order passed in Criminal M.P.No.2088 of 2009 in C.C.No.63 of 2006 on the file of the Court of Judicial Magistrate of First Class, Mummidivaram, filed under Section 70 (2) of the Code of Criminal Procedure, 1973 to condone the absence of the petitioners stating that he was not satisfied with the reasons mentioned in the petition without any proof. The petitioners claimed that the 3rd accused is bed ridden and is undergoing dialysis atleast four times a day and cannot physically be present before the court in view of her serious ailment. The petitioners further stated that the accused No.1,4 and 5 are employees of various institutions and consequently they requested the trial court to permit the 2nd accused to appear on behalf of all the accused. The learned Magistrate also dismissed Criminal M.P.No.2157 of 2009 filed by the petitioners to recall the Non bailable warrants ordered to be issued on 14.9.2009 on the dismissal of Criminal M.P.No.2088 of 2009. The learned Magistrate in the said order stated in detail about the default on behalf of the petitioners in cross examination of P.W.1 and because of want of proof of the illness of the third accused and the continuous absence of the other accused before the court earlier, did not find any merits in the petition filed for recalling the warrants. In doing so, the learned Magistrate referred to a decision of Madras High Court reported in Smt Rama Lakshmi Vs. State by Dy. Superintendent of Police, Sivagangai; 2006 CRL.L.J at page 2053 while distinguishing the decision of our own High Court reported in M/s. Ramakrishna Agencies Vs. State of A.P; 2000(1) Law Summary at page 78. The petitioners have filed the copies of the medical reports relating to the 3rd accused to doubt the authenticity of which there is no reason. They show her to be in such precarious state of health having to undergo dialysis two to four times per day in a sterile environment. It will be unjust and inhuman to compel the 3rd accused who is aged about 58 years to be physically present before the trial court on all dates of hearing under such circumstances. Similarly, the physical presence of accused Nos.4 and 5 who are employees can also be reasonably insisted upon only when their physical presence is absolutely necessary for making further progress in the case. But otherwise making them come all the way from Secunderabad and Bangalore to Mummidivaram on all dates of hearing will also be onerous and oppressive. The attention of the learned Magistrate was obviously not invited to the decision reported in Yarlagadda Venkata Krishna Rao Vs. State of A.P and another; 2006 (2) ALD (Crl.) 523 wherein the learned Judge observed that when the accused is represented by a Counsel and the physical presence of the accused is not required to proceed with the trial and when an application is filed on behalf of the accused requesting the Court to proceed with the trial in his absence but in the presence of his counsel, there is no justification for any Court to refuse to proceed with the trial of the case except in cases where the witnesses are required to identify the accused. The learned Judge also made it clear that whenever physical presence of the accused is required at the time of framing of charges, examination of the accused under Section 313 Cr.P.C etc., the Court may insist on his presence if the accused is not represented by Counsel on special Vakalat under Section 205 Cr.P.C. The order of the learned Magistrate also does not elucidate as to how the decision of this Court cited before him on the aspect is irrelevant to the facts and circumstances before him and as to how the learned Magistrate can prefer to follow a decision of the Madras High Court to the contrary, when a decision of this Court which is binding on him is cited. Without going further into that aspect, in the light of the principles laid down in the two decisions cited and in the light of the facts and circumstances referred to above, it is to be held towards securing the ends of justice that Non-bailable warrants issued against the petitioners be recalled and they be permitted to appear before the trial Court without the fear of compelling process issued against them. Sri T. Bali Reddy, learned Senior Counsel for the petitioners stated that the petitioners sought to make an application to the trial court under Rule 37 of the Criminal Rules of Practice and Circular orders to enable the 2nd accused to be permitted to represent the other accused in the case during the further proceedings except on those days of hearing when their personal presence is absolutely necessary for the further progress in the case. The petitioners are at liberty to make such an application before the trial court and the trial court shall consider the same on merits in accordance with law, in the light of the above observations made in this order. Therefore, the Non-bailable warrants issued against the petitioners in C.C.No.63 of 2006 on the file of the Judicial Magistrate of First Class shall be recalled and the petitioners are permitted to appear before the said court on the future dates of hearing of the said Criminal case and they shall be allowed to participate in the further proceedings of the case. If the 3rd accused is unable to have her physical presence before the trial court due to her precarious state of health, her presence shall be dispensed with by the trial court on a proper application made by the petitioners in that behalf. If the petitioners were to make an application under Rule 37 of the Criminal Rules of Practice and Circular orders, the trial court shall positively to consider the same and insist on the presence of the petitioners before the court only when absolutely necessary and indispensable except but of course the third accused. The Criminal Petition is ordered accordingly. ______________________ Date:25.09.2009 G.BHAVANIPRASAD,J Gk. HON’BLE SRI JUSTICE G.BHAVANI PRASAD Crl. PETITION NO.8011 OF 2009 Date:25.09.2009 Gk.