IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Crl.MC.No. 2848 of 2009() ------------------------- ST.481/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER(S): ACCUSED NO.1 & 2: ------------------------------------------------------ 1. M/S. TRAVAMCORE CONFECTIONERY WORKS, KOTTAMUKKU, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER, ABDUL RAHIM. 2. ABDUL RAHIM, AGED 86 YEARS, MANAGING PARTNER, M/S.TRAVAMCORE CONFECTIONERY WORKS, KOTTAMUKKU, KOLLAM. BY ADVS. MR.V.V.RAJA, MR.M.T.SURESH KUMAR. RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ENFORCEMENT OFFICER, EMPLOYEES PROVIDENT FUNDS ORGANIZATION, DIST.OFFICE, KOLLAM. R1 BY PUBLIC PROSECUTOR MR. S.U.NAZAR R2 BY ADV.MR.V.V.SURESH, SC, EPF ORGANIZATION. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/09/2009 ALONG WITH CRMC.NO.2849 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. -------------------------------------------------------------- CRL.M.C.NOs.2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856 OF 2009 ------------------------------------------------------------ Dated 9th September 2009 O R D E R Petitioners are respectively accused 1 and 2 in S.T.481/2005, 482/2005, 484/2005, 487/2005, 483/2005, 485/2005, 488/2005, 486/2005 and 480/2005 on the file of Chief Judicial Magistrate, Kollam. First petitioner is a partnership firm and second petitioner is its Managing partner. Learned Magistrate has taken cognizance of the offences under Section 42 of Employees Pension Scheme read with Section 14(IA) and 14(A) of Employees Provident Fund and Miscellaneous Provision Act, 1952. In all the cases petitioners filed C.M.P.6933/09, 6931/09, 6948/09, 6956/09, 6950/09, 6952/09, 6958/09, 6954/09 and 6935/09 for exempting the presence on 13/7/2009 contending that because of serious illness he is not in a position to appear before the court and therefore, sought exemption from appearing for a day. Along with the petitions copy of medical certificate issued by the CRL.M.C.NOs.2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856 OF 2009 2 Director of S.G.Hospital, Kollam to the effect that second petitioner underwent laparotomy and hemicolestomy surgeries and was under medical care and is confined to bed was filed. Second petitioner is aged 88 years. Learned Magistrate as per identical orders, impugned in the respective petitions, dismissed the petitions and thereafter issued non bailable warrant holding that case has been pending for the last 4½ years for the appearance of the petitioners but, they did not appear and even though a petition under Section 205 of Code of Criminal Procedure was filed in 2007, it was not pressed thereafter and in such circumstances, exemption cannot be granted. 2. These petitions are filed challenging respective orders contending that finding of the learned Magistrate that case was pending for 4½ years for appearance of the accused is not correct. Learned counsel made available a copy of the proceeding paper and pointed out that summons was served on the accused only in 2007 and there is no justification to insist for the presence of the petitioners, especially when medical certificate was filed to show that second CRL.M.C.NOs.2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856 OF 2009 3 petitioner was aged 88 years and is unable to appear due to his illness and therefore, those orders are to be quashed. 3. Learned counsel appearing for petitioners and learned counsel appearing for second respondent were heard. Learned counsel appearing for second respondent did not seriously oppose the applications. 4. When a petition under Section 205 of Code of Criminal Procedure was filed and is pending before the learned Magistrate, without passing orders in that application, learned Magistrate was not justified in insisting for the presence of second petitioner, especially when, he is aged 88 years and medical certificate was produced to show that he is not in a good physical condition to appear. More over, considering the nature of the offence, personal presence of the second petitioner is not necessary to proceed with the case. As held by this court in various decisions, when presence of the accused is not necessary for identification, learned Magistrate is not justified in insisting for the personal presence of second petitioner, especially when granting permanent CRL.M.C.NOs.2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856 OF 2009 4 exemption, evidence could be recorded and case could be disposed of. In such circumstance, impugned orders are quashed. Chief Judicial Magistrate, Kollam is directed to pass appropriate orders in the applications filed by petitioners under Section 205 of Code of Criminal Procedure. As it is submitted that petition filed to decide the maintainability of the complaint, as a preliminary point is pending, learned Magistrate is also directed to dispose the petitions after hearing the parties in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.