IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 Crl.MC.No. 591 of 2011() ------------------------ CP.1/2011 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... (CRIME NO.385/10 OF PAYYANNUR POLICE STATION,KANNUR DISTRICT) .............. PETITIONER(S): ACCUSED NO.3: -------------------------------------------------- NISHANTH.K., S/O.NARAYANAN, AGED 24 YEARS, KIZHAKINIYIL HOUSE, PAYYANUR AMSOM, PUNCHAKKADE. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.591 of 2011 --------------------------------------- Dated this 24th day of February, 2011 ORDER Petitioner is the third accused in C.P.No.1 of 2011 of the Court of learned Judicial First Class Magistrate, Payyannur arising from the final report in Crime No.385 of 2010 of Payyannur Police Station for offences punishable under Secs.143, 147, 148, 323, 324 and 308 r/w Sec.149 of the Penal Code. Petitioner appeared in the committal Court and was enlarged on bail. Presently he is working abroad. Petitioner filed Annexure-II, petition to excuse his absence at the time of committal. Learned Magistrate dismissed that application by Annexure-III, order and issued non bailable warrant to the petitioner by Annexure-IV, order. Annexures-III and IV, orders are under challenge. Learned counsel submits that presence of petitioner is not absolutely necessary at the time of committal and placed reliance on the decisions in Vikraman Vs. State of Kerala (1986 KLT 1372) and Fasar Shaheen Vs. State of Kerala (2009(3) KLT SN 13 (Case No.15)). I have heard learned Public Prosecutor also. 2. As per the decisions referred supra, physical presence of petitioner is not absolutely required at the time of committal Crl.M.C.No.591 of 2011 -: 2 :- and hence it was not necessary to insist his presence if otherwise his presence is not required. But, petitioner has to file an affidavit stating that he may be permitted to appear through counsel at the time of committal and that he shall not thereafter challenge the order of committal on the ground of his absence at the time of committal. Learned Magistrate has to consider the application afresh in the light of the affidavit and decisions referred supra. Resultantly this criminal miscellaneous case is allowed by way of remand. Annexure-III and IV, orders in C.M.P.No.388 of 2011 are set aside. C.M.P.No.388 of 2011 is remitted to the learned Magistrate for fresh decision in the light of the affidavit petitioner files as stated above and the decisions referred supra. In case learned Magistrate allows the petitioner to be represented by lawyer at the time of committal, question whether presence of petitioner is required at the time of trial shall be decided by the Court trying the case. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge