IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH APRIL 2008 / 9TH VAISAKHA 1930 Crl.MC.No. 1732 of 2008() ------------------------- SC.259/2007 of ADDL.SESSIONS COURT NO.IV (ADHOC II), THODUPUZHA .................... PETITIONER: ACCUSED ------------------- SASI, S/O.KUTTY, PADICKAPARAYIL HOUSE MALAYIINCHI BHAGAM, EDAMARUKU KARA UDUMBANNOOR VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENTS: COMPLAINANT/STATE ------------------------------ STATE REP; BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.K.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/03/2008, THE COURT ON 29/04/2008 PASSED THE FOLLOWING: V.K.MOHANAN, J. -------------------------------- Crl.M.C.No.1732 of 2008 -------------------------------- Dated this the 29th day of April, 2008 O R D E R The petitioner herein is the sole accused in S.C.No.259/2007 on the file of Additional Sessions Court No.IV (Adhoc II), Thodupuzha for offences punishable under Section 55 (g) of the Kerala Abkari Act. The date of occurrence was on 11/3/2006, on which date, the petitioner/accused was alleged to have found in possession of 400 litres of wash. On filing the final report, cognizance was taken and finally, trial was started. Thus, on 15/4/2008, according to the petitioner, he could not appear before the court below because he was suffering from enteric fever (typhoid). But the court dismissed his absent application and bail granted to the petitioner was cancelled and the bail bond forfeited and issued non-bailable warrant to the petitioner/accused and also to the sureties. It is the above proceedings of the court below challenged in this Crl.M.C. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. The learned counsel for the petitioner submitted that the petitioner was regularly appearing on all dates of posting; Crl.M.C.No.1732/2008 2 but unfortunately he could not appear on 15/4/2008 due to ailment and he had made arrangement to excuse his absence by filing a petition and he had produced a copy of Annexure 1 medical certificate. Therefore, the learned counsel for the petitioner submits that the proceedings of the court below is not correct and further prays that the order of the court below may be set aside. 4. The learned Public Prosecutor submitted that the date on which the petitioner was absent, witnesses were present as seen from Annexure II proceedings. On consideration of Annexure II proceedings of the court below, I cannot find any fault with the court below. From Annexure II order, it is clear that several witnesses were present though PW1 was absent. It is also clear from Annexure II order that not only the accused but the counsel for the accused was also absent. For the examination of the witnesses, probably the presence of the accused may not be necessary except for identification purpose, but the counsel for the accused should have been in court and should co-operate with the case, in which case the court could have proceeded further in accordance with its schedule. It is observed by the learned Judge that since the accused and his Crl.M.C.No.1732/2008 3 counsel are absent, witnesses could not be examined. It was in the above circumstances the bail which granted to the accused is cancelled and his bail bond forfeited. 5. But Annexure I certificate would show that the petitioner has got some ailment and probably because of his ailment, he was not able to attend the court on 15/4/2008. As observed earlier, It is for the reason that the accused as well as the counsel are absent, Annexure II order was passed by the Sessions Judge. But considering Annexure I certificate, I am of the view of that Annexure II proceedings of the court below can be set aside on terms. Accordingly, Annexure II proceedings of the court below is set aside on condition the petitioner pay an amount of Rs.2,000/- (Rupees two thousand only) before the court below. The amount shall be deposited within a period of three weeks from today and on depositing the amount and on moving petitions for re-calling the non-bailable warrant issued against the petitioner and for bail, the court shall allow the same and to proceed with the trial in accordance with law and procedure. This Criminal Miscellaneous Case is allowed as above. (V.K.MOHANAN, JUDGE) jsr