IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 Crl.MC.No. 4408 of 2010 ---------------------------------- [CC.NO.602/2008 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR] .................... PETITIONER/ACCUSED: ---------------------------------- JOSHY, S/O.VELAYUDHAN, AGED 41 YEARS, KANJIRAPARAMBIL HOUSE, KARAYAVATTOM P.O., VALAPPAD, THRISSUR DISTRICT. BY ADV. SRI.NIREESH MATHEW. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VALAPPAD POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. -------------------------------------------------- Crl.M.C. No. 4408 of 2010 ------------------------------------- Dated this the 3rd day of November, 2010. ORDER Petitioner is the accused in C.C.No.602/2008 on the file of the Judicial First Class Magistrate's Court, Kodungallur. When the case was posted for questioning the accused under Section 313 Cr.P.C., he filed Annexure-B petition seeking permission to answer the question under Section 313 Cr.P.C. by his counsel in his absence. By Annexure C order, learned Magistrate dismissed the petition holding that petitioner has not filed any affidavit for that purpose. 2. The learned Senior counsel appearing for the petitioner submitted that petitioner may be granted liberty to file a proper application and Annexure-C order may not stand in the way of considering the application on merits. 3. When exemption is sought for by an accused, it is upto the accused to file an affidavit showing the reasons and undertaking that on his behalf his counsel will appear and he will not challenge the answers given by his counsel on his behalf either before that court or on its appeal or revision when there is Crl.M.C. No. 4408 of 2010 2 no affidavit by the petitioner, the learned Magistrate was justified in dismissing the application by Annexure C order. It is made clear that Annexure C order will not prevent the petitioner to file a proper affidavit for exemption, when such an application is filed or the Magistrate from considering such an application on merits. Petition is disposed of. M.SASIDHARAN NAMBIAR, JUDGE ln.