IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 Crl.MC.No. 444 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.4273/2010 Dated 05/03/2010 SC.669/2009 of ASSISTANT SESSIONS COURT, THALASSERY .................... PETITIONER(S): ACCUSED: ----------------------------------------- HUSSAIN NUCHIYIL CHALUKANDY, S/O.AHAMMED, AGED 31 YEARS, VENGAD, KANNUR DISTRICT, KERALA. BY ADV. SRI.P.M.HABEEB RESPONDENT(S): --------------------------- STATE OF KERALA, STATION HOUSE OFFICER, CRIME NO.333 OF 2007 OF KUTHUPARAMBA POLICE STATION, 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 18/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN,J ------------------------------- Crl.M.C.NO.444 OF 2011 ------------------------------------------------- Dated this the 18th day of February, 2011. ORDER The prayer in this Crl.M.C. is to permit the petitioner to stay at Riyad (Saudi) for a period of one year from 17-03-2010 and to direct the learned Asst. Sessions Judge to exempt the petitioner from personal appearance during the trial of the case in that court, for a period of one year. 2. Heard the learned counsel for the petitioner and the Public Prosecutor. 3. The petitioner is an accused in Crime No.333/2007 of Kuthuparamba Police Station for the offence punishable under Sections 143,147,456,153,436 r/w 149 IPC. Now the case of the petitioner is that he is working as a casual employee in abroad and his employer will not release his passport before the expiry of one year time from today because of the nature of the contract and therefore, it is prayed that he may be exempted from appearing in the courts below for a period of one year. 4. Having regard to the facts and circumstances involved in the case, I am of the view that this Court will not be justified in granting such blanket order. Admittedly, the date of occurrence Crl.M.C.NO.444 OF 2011 2 in the above crime is pertinent to the year 2007 and now the case stands committed and pending for trial. In the light of the section of offences involved in the above sessions case it appears that number of accused is more than 5 and it is for the trial court to consider whether the request of the petitioner for his personal exemption can be allowed or not. In this junction, it is relevant to note that Annexure A(1) order dated 17-3-2010 in C.M.P.No.42 of 2010 in SC-669/2009, the learned Principal Assistant Judge has observed that the sessions case pending against the accused is not likely to be taken up in near future at least for one year. If that be so, I am sure that if a petition is caused to file by the petitioner, through his counsel as he is not available to appear before the courts below, the same will be considered by the courts below in accordance with its merit. I am also sure that, even if the trial commenced, before the expiry of one year time and contrary to the observation made by the learned Sessions Judge, the learned Judge will not insist for the personal appearance of the petitioner, unless the same is inevitable. Therefore, it is only just and proper to relegate the petitioner to approach the trial court with a prayer for personal exemption. Crl.M.C.NO.444 OF 2011 3 In the result, this Crl.M.C. is disposed of relegating the petitioner to approach the court of Principal Asst. Sessions Judge, to file an application for exemption in absentia in the trial court for a period of one year and I am sure that the trial court will consider such a petition on merit and pass appropriate orders. This Crl.M.C is disposed of accordingly. V.K.MOHANAN, JUDGE pm