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. 446 of 2011() ---------------------------------- ( C.C.NO.491/2009 OF JUDICIAL 1ST CLASS MAGISTRATE-II, PERAMBRA) ------------------------------- PETITIONER(S): ACCUSED --------------------------------------- SHAHABUDEEN, S/O.MUHAMMED, NEELANGONDAN VEETTIL, NILAMBUR AMSOM, AMBALAPPADI DESOM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE ------------------------------------------------------------ 1. ARASAL PAKKARATH, S/O.MUHAMMED, AGED 34 YEARS, PAKKARATH HOUSE, WANDOOR P.O., MALAPPURAM DISTRICT. PIN- 676 520 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.446 of 2011 --------------------------------------- Dated this 24th day of February, 2011 ORDER Notice to first respondent is dispensed with in view of the order I propose to pass. 2. Petitioner is accused in C.C.No.491 of 2009 of the Court of learned Judicial First Class Magistrate-II, Perambra (who is now working abroad) is facing charge for offence punishable under sec.420 of the Indian Penal Code. Learned Magistrate took cognizance of the said offence and issued process to the petitioner and others. Petitioner filed an application for permanent exemption under Sec.205 of the Code of Criminal Procedure (for short, "the Code”). Learned Magistrate rejected that application by Annexure-I, order observing that pre- charge evidence is almost over and for framing charge presence of petitioner is necessary. That order is under challenge. I have heard learned counsel for petitioner and the learned Public Prosecutor. 3. Learned counsel has submitted that presence of petitioner as accused even in warrant trial case is not necessary and that it is within the discretionary power of learned Crl.M.C.No.446 of 2011 -: 2 :- Magistrate to grant personal exemption invoking Sec.205 of the Code. Learned counsel submitted that since petitioner is working abroad if immediately he has to come back it may affect his job, not to say about the huge expense involved. It is submitted that petitioner will not dispute his identity in the course of trial. Learned counsel has placed reliance on the decision of the Supreme Court in Bhaskar Industries Ltd Vs. Bhiwani Denim and Apparels Ltd and Ors. (AIR 2001 SC 3625) where it is stated, referring to Sec.317(1) of the Code that discretionary power can be exercised by the Magistrate throughout or any stage of proceeding in summons case. 4. It is trite in law that even in warrant case it is within the power of the Magistrate to grant permanent exemption if circumstances justified such a course. Hence the mere fact that case on hand is a warrant case need not prevent the learned Magistrate from granting permanent exemption if otherwise petitioner is entitled to that relief. I do not find any provision of law which required that at the time of framing charge petitioner ought to be present in Court. The Supreme Court in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (2000(8) SCC 740(743)) has prescribed the precautions to be taken when Crl.M.C.No.446 of 2011 -: 3 :- exemption is granted to an accused and his examination under Sec.313 of the code is to be done through counsel who represented him. That procedure can be adopted at the stage of framing charge also. These aspects of the matter has not been taken into account by the learned Magistrate. Hence, I am inclined to set aside the order and remit C.M.P.No.4408 of 2010 to the learned Magistrate for fresh decision. But, it is directed that petitioner shall file an affidavit stating that he may be allowed to answer the charge that may be framed against him through counsel, that doing so will not cause any prejudice to him and that he will not raise any challenge thereafter to the procedure adopted on the ground that when the charge is framed he was not present in Court. If the Magistrate decides to grant permanent exemption having regard to the facts and circumstances of the case, learned Magistrate may also direct the petitioner to file affidavit in the manner stated in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (supra) regarding examination of petitioner under Sec.313 of the Code. In that event petitioner shall state in the affidavit that he will not dispute his identity in the course of trial. Learned Magistrate may grant reasonable time to the petitioner to file appropriate Crl.M.C.No.446 of 2011 -: 4 :- affidavit. Learned Magistrate has to consider the matter afresh in the light of the observation made above. Resultantly this criminal miscellaneous case is allowed, Annexure-A1, order is set aside and C.M.A.No.4408 of 2010 is remitted to the learned Magistrate for fresh consideration and order in the light of the observation made above. (THOMAS P JOSEPH, JUDGE) Sbna/-