IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 Crl.MC.No. 4518 of 2008() ------------------------- CC.440/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER(S): ACCUSED 2 & 3 ---------------------- 1. NAIDU, MANAGER(TECHNICAL), NATIONAL HIGHWAY AUTHORITY OF INDIA, SIV TEMPLE ROAD, ALUVA 8. 2. ZULFICKER, ENGINEER, C/O. NAIDU, NATIONAL HIGHWAY AUTHORITY OF INDIA, SIVA TEMPLE ROAD, ALUVA 8 BY ADV. SRI.THOMAS ANTONY SRI.TITUS MANI SRI.S.SURAJ (PALATHANATHU) RESPONDENT(S): COMPLAINAT & STATE --------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. K.C.BALAGOPAL S/O.K.A.CHANDRASEKHARA MENON C-GARDENS, THOTTAKATTUKARA, N.H.ROAD, ALUVA 683108. R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4518 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2008 O R D E R The crux of the grievance of the petitioners, who are accused 2 and 3 in C.C.440 of 2005, is that their application, CMP 1694 of 2005, raising an objection against the maintainability of the prosecution is not considered by the learned Magistrate at all. 2. Report of the learned Magistrate was called for and the learned Magistrate reports that the said petition is pending even now and the same has not been called after 9.1.2006. According to the learned Magistrate it was not brought to his notice that the application remains pending without disposal. However, the learned Magistrate has now reported that the said petition shall be disposed of on merits. 3. I am satisfied that no further directions are necessary in this Crl.M.C. I accept the report of the learned Magistrate that CMP 1694 of 2005 shall be disposed of expeditiously. I further Crl.M.C.No. 4518 of 2008 2 direct that the personal presence of the petitioners shall not be insisted for consideration and disposal of the said petition, provided they are represented by their counsel before the court below. The learned Magistrate must dispose of the said petition as expeditiously as possible - at any rate within a period of one month from 20.12.2008. Compliance shall be reported to this court. 4. With the above directions this Crl.M.C. is dismissed. (R. BASANT) Judge tm Crl.M.C.No. 4518 of 2008 3 R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4518 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2008 O R D E R The petitioners face indictment as accused 2 and 3 in a prosecution for offences punishable, inter alia, under Sections 447 and 427 I.P.C. They are officials of the National High Way Authority of India. According to them, they are not liable to face any prosecution for the offences alleged as the alleged acts are attributable to their official capacity as officers of the National High Way Authority of India. They are now employed outside the State. They have entered appearance through counsel before the learned J.F.M.C., Alwaye as early as on 21.6.2005, it is submitted. According to the learned counsel for the petitioners, they had filed Annex.3 application as early as on 21.6.2005 to drop the proceedings against them in as much as the requisite sanction under the National High Way Authority Act has not been obtained. Crl.M.C.No. 4518 of 2008 4 2. The short grievance of the petitioners is that the said petition is not disposed of by the learned Magistrate. The learned Magistrate is insisting that the petitioners must appear personally as a condition precedent for consideration of Annex.3 application, it is submitted. 3. I am satisfied that such insistence is not justified. There shall hence be a direction that personal presence of the petitioners shall not be insisted by the learned Magistrate to consider Annex.3 application. 4. Call for a report from the learned Magistrate, who shall report specifically whether Annex.3 application has been filed and is pending before court? If such application is pending, the learned Magistrate shall after hearing counsel for the petitioners consider whether the objection that the prosecution is not sustainable is justified and pass appropriate orders on merits. 5. Call this petition again on 19.12.2008. Till that date, the personal presence of the petitioners shall not be insisted by the learned Magistrate. 6. Hand over the order to the learned counsel for the petitioner for immediate production before the learned Magistrate. (R. BASANT) Crl.M.C.No. 4518 of 2008 5 Judge tm