IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 Crl.MC.No. 2852 of 2008() ------------------------- AGAINST THE ORDER DATED 06/06/2008 IN CRMP 681/2008AND CRMP.686/2008 IN SC.183/2008 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ......................................... PETITIONER: --------------------- SREEKUMAR, RETNAJALIYIL VEEDU, CHERUMUKHA MURI, NOORANADU VILLAGE, MAVELIKARA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.K.SASIKUMAR RESPONDENT: ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2852 of 2008 ------------------------------------------------- Dated this the 29th day of July, 2008 ORDER The short grievance of the petitioner is that his application for exemption and his application for discharge filed before the learned Sessions Judge as Annexures-A3 and A4 have been dismissed without proper consideration. 2. The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Secs.307 and 324 read with Sec.149 IPC. He is the 9th accused. All the co-accused have already been tried, found not guilty and acquitted. The case against the petitioner was split up and coercive processes were issued against the petitioner. The petitioner came to this Court with Crl.M.C.No.795/08. Another Bench of this Court disposed of the petition with observations. In compliance with the said observations, the petitioner surrendered before Crl.M.C. No. 2852 of 2008 -: 2 :- learned Sessions Judge and was enlarged on bail. Thereafter, the case was posted. When the case was posted to 6/6/08, the petitioner filed Annexures-A3 and A4 applications. It was prayed that the petitioner may be discharged. It was further prayed that the petitioner may be exempted from personal appearance. The petition seeking exemption from personal appearance was disposed of by Annexure-A5 order which reads: “Disallowed”. The petition seeking discharge was disposed of by Annexure-A6 order which reads as follows: “No objection filed. Heard. Petitioner has been absenting and his bail bond stands cancelled. This petition filed in absentia is not maintainable and it is hereby dismissed.” 3. The learned counsel for the petitioner submits that both petitions have not been disposed of properly by the learned Sessions Judge. The case stood posted only for hearing on the question of discharge and on that day the personal appearance of the petitioner was totally unnecessary. The learned Sessions Judge had no valid reason whatsoever to dismiss the application to excuse his absence on that date of posting as the proceedings could have gone further even without the personal presence of Crl.M.C. No. 2852 of 2008 -: 3 :- the petitioner, submits counsel. The presence of the petitioner's counsel was absolutely sufficient for hearing on the question of discharge under Sec.227 Cr.P.C. A plea for discharge could certainly have been advanced in the absence of the petitioner when he was represented by his counsel, the petitioner having already entered appearance and having been enlarged on bail. In these circumstances, the dismissal of Crl.M.P.No.686/08 with a non- speaking order – disallowed, is certainly not justified. The same warrants interference. 4. Coming to the prayer for discharge even in the absence of an application for discharge from the petitioner, such plea for discharge has to be considered. The obligation of the court to consider whether charges deserve to be framed or not does not depend on an application to be filed by the petitioner/indictee. Even without any such application, the learned Sessions Judge is obliged to consider the question whether charges deserve to be framed or not under Sec.227/228 Cr.P.C. The reason shown for rejection of the petition claiming discharge is also absolutely unjustified. 5. I am, in these circumstances, satisfied that Annexures- A5 and A6 orders and all further proceedings on the basis of such orders passed deserve to be interfered with. This Crl.M.C. Crl.M.C. No. 2852 of 2008 -: 4 :- deserves to be allowed. 6. In the result: (a) This Crl.M.C. is allowed. (b) The order dated 6/6/08 in Crl.M.P.No.686/08 is set aside. (c) The order dated 6/6/08 in Crl.M.P.No.681/08 is also set aside. (d) All further action taken on the basis of those orders shall also stand set aside. (e) The learned Sessions Judge shall now consider the plea for discharge without insisting on the personal presence of the petitioner if he is represented by a counsel. 7. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2852 of 2008 -: 5 :-