IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 Crl.MC.No. 3794 of 2007() ------------------------- AGAINST THE ORDER DATED 28/11/2007 IN CMP 7528/2007 IN CC.703/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... PETITIONER: PETITIONER -------------------------------------------- T.P.REGHUNATHAN, S/O. PARAMESWARA PANICKER, CUCCOO, C.C.ROAD, M.O.WARD, ALAPPUZHA DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENTS: RESPONDENTS ------------------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.ALIYAR KUNJU, SALSABEEL, KILLI, KOLLODU P.O., THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/01/2008, ALONG WITH CRMC NO. 3800 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.Nos.3794 & 3800 of 2007 = = = = = = = = = = = = = = Dated this the 7th day of January, 2008 ORDER The common petitioner in these petitions, filed under Section 482 Cr.P.C, is the common accused in C.C.Nos.1 of 2005 and 703 of 2004 on the files of the J.F.C.M, Kattakkada. Both are prosecutions under Section 138 of the Negotiable Instruments Act, 1881 between the same parties. The petitioner was granted bail by the court below in both the cases. Later he had met with a major road traffic accident, as a result of which he was in the Intensive Care Unit of Medical Trust Hospital, Ernakulam and was on ventilator for 19 days and thereafter was bed ridden for several days. He therefore moved the learned Magistrate for personal exemption and prayed that his counsel may be permitted to represent him during the trial of the case. Since non bailable warrants of arrest were pending against the petitioner in both the cases and his request for personal exemption has not been considered by the learned Magistrate, the petitioner approached this Court and filed Cr.M.C.Nos.3237 of 2007 and 3167 of 2007. This Court permitted the petitioner to Crl.M.C.Nos. 3794 & 3800 of 2007 2 make appropriate applications under Section 205 Cr.P.C by appearing through his counsel before the court below. Thereafter, the court below as per the impugned orders dated 28.11.07 dismissed the applications filed by the petitioner to dispense with his personal appearance and to permit him to appear through his counsel during the trial of each case. Hence this petition. 2. Since the only question arising for consideration in this petition is the question as to whether the petitioner should personally appear before the court below during the trial of the case, I do not think that notice of this petition to the 2nd respondent-complainant is not necessary and accordingly notice to the 2nd respondent is dispensed with. 3. It appears that the learned Magistrate has taken a hyper-technical view in rejecting the applications. It is hardly necessary in a prosecution under Section 138 of the Negotiable Instruments Act to insist on the personal presence of the accused in the dock. It is particularly so in case of a person like the petitioner who has met with a major road traffic accident and Crl.M.C.Nos. 3794 & 3800 of 2007 3 has been supplicating to the learned Magistrate to permit him to be represented through his counsel. It was sadism to insist on the personal presence of the accused. 3. This Crl.M.C is disposed of permitting the petitioner to appear through his counsel during the trial of both the cases and also during the examination of the accused under Section 313(1) (b) Cr.P.C. The petitioner shall, however, be present before the court at the time of pronouncement of the final judgment in the cases. Warrants, if any, pending against the petitioner shall stand recalled. V. RAMKUMAR, JUDGE sj