IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.MC.No. 1601 of 2009 ---------------------------------- CC. NO.209/2006 OF JUDL.MAGISTRATE OF FIRST CLASS, KOYILANDY. .................... PETITIONER/ ACCUSED: ----------------------------------- 1. T.R.REGHULAL,S/O.T.R.RAGHAVAN, PARTNER,ELITE AGRO SPECIALITIES, PERINGADOOR,THRISSUR,RESIDING AT CHANDASSERY HOUSE,WOMENS CLUB ROAD, CHEMBUKAVU,THRISSUR. 2. SARIGHA REGHULAL,D/O.K.MADHAVAN, PARTNER, ELITE AGRO SPECIALITIES, PERINGADOOR, THRISSUR,RESIDING AT THANDASSERY HOUSE,WOMENS CLUB ROAD, CHEMBUKAVU,THRISSUR. BY ADV. MR.T.G.RAJENDRAN. RESPONDENT/COMPLAINANT/STATE: ------------------------------------------------------- 1. THE FOOD INSPECTOR, KOZHIKODE CORPORATION, KOZHIKODE. 2. STATE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1601 OF 2009 ------------------------------------------ Dated 22nd May 2009 O R D E R Petitioners are accused 6 and 7 in C.C.209/2006 on the file of Judicial First Class Magistrate, Koyilandy. They were tried for the offence under Section 16(1) a(i) read with 7(ii) and 2(ix) of P.F.A Rules. Presence of the petitioners at the time of trial was dispensed with and they were permitted to appear through their counsel. After evidence was recorded and arguments were heard, case was posted for judgment to 3/1/2009. Petitioners then filed Annexure-II application to excuse their presence at the time of pronouncing the judgment contending that petitioners are settled at Ahamedabad of Gujarat State and they are husband and wife and first petitioner is indisposed and second petitioner is to look after him and hence they could not appear. Under Annexure-III order learned Magistrate dismissed the application holding that petitioners have to be present when the judgment is pronounced. Petitioners challenged that CRMC 1601/09 2 order before this court in Crl.M.C.773/2009. This court under Annexure-IV order found that Magistrate has not properly considered the application with reference to sub section 6 of Section 353 of Code of Criminal Procedure and directed the Magistrate to re-consider the matter afresh. Annexure-II order was set aside. Learned Magistrate thereafter passed Annexure-V order once again dismissing the application holding that under Section 353(6) of the Code of Criminal Procedure it is not possible to dispense with the personal appearance of the petitioner when judgment is being pronounced even though they were earlier exempted. This petition is filed under Section 482 of Code of Criminal Procedure to quash Ext.P5 order and to direct the Magistrate to pronounce the judgment in the absence of the petitioners and in the presence of their counsel. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioners pointed out that petitioners were exempted at the time of trial from personal appearance. This fact CRMC 1601/09 3 is not disputed. Under Section 16(a) of P.F.A Act, an offence under Section 16(1) shall be tried in a summary way and provisions of Sections 262 to 265 shall apply on such trial. Though under sub section 6 of Section 353, appearance of the accused is necessary at the time of pronouncing the judgment, it exempts the presence of accused if during trial it was dispensed with and the sentence is one of fine or acquittal. Sub section 7 of Section 353 provides that, judgment delivered in the absence of the accused or his pleader at the time of delivery will not invalidate the trial. When petitioners are residents of Ahamedabad and the conviction is appealable, presence of the petitioners at the time of pronouncement of the judgment need not be insisted. Learned counsel relied on the decision of this court in Jain Babu v. Joseph (2008 (4) KLT 16) and argued that when the petitioners themselves filed petition to pronounce the judgment in their absence, learned Magistrate should have pronounced judgment instead of insisting for the presence of the petitioners and in such circumstances CRMC 1601/09 4 Annexure-V order is to be quashed and learned Magistrate is to be directed to pronounce the judgment. 4. Learned Public Prosecutor submitted that when sub Section 6 of Section 353 provides that except in the case where accused is to be sentenced only for fine, the order is to be quashed at the time of pronouncing the judgment presence of the accused must be there and in such circumstances the order is perfectly correct. 5. Though Sub Section 6 of Section 353 provides for presence of the accused at the time of pronouncing judgment except where his presence is dispensed with and the sentence to be awarded is one of fine only or the accused is to be acquitted, sub section 7 of Section 353 makes it absolutely clear that judgment delivered in the absence of the accused or his pleader will not invalidate the trial or the conviction. In such circumstances, the Magistrate should have taken a more meaningful approach on the question. When the accused themselves filed an application for pronouncing the judgment, in their absence treating CRMC 1601/09 5 the presence of their counsel as their presence, in the interest of justice Magistrate could have pronounced the judgment as neither judgment nor trial would be invalidated by that approach. It would only avoid further protraction of the case. It is more so, when the accused are entitled to file an appeal and entitled to get the sentence suspended by the learned Magistrate or learned Sessions Judge. True, when the case is tried as a warrant case, after finding the accused guilty, he is to be heard on the question of sentence, before pronouncing judgment and for that purpose presence of the accused is necessary. But in case the accused themselves submit that presence of their counsel is to be treated as their presence, I do not find that it is not necessary to insist for the presence of accused at the time of pronouncing the judgment, especially in view of sub section 7 of Section 353 of Code of Criminal Procedure. In a case where accused are in differents state there is no necessity to insist for the presence of the accused for the purpose of pronouncing judgment when the accused themselves CRMC 1601/09 6 file application to pronounce judgment in their absence. In such circumstances, learned Magistrate is directed to pronounce judgment treating presence of their counsel as presence of the petitioners and on filing a statement to the effect that they are not insisting to be heard personally on the question of sentence. On the petitioners filing such statement, Magistrate to pronounce judgment as provided under Section 353 treating the presence of their counsel as presence of the petitioners. M.SASIDHARAN NAMBIAR, JUDGE. uj.