IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 Crl.MC.No. 66 of 2010() --------------------------------- CMP. 3940/2009 IN LPC.247/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... PETITIONER/ACCUSED: ---------------------------------- SREEDHARA KURUP, AGED 60 YEARS, PURAKKOT HOUSE, SREEHARI PRASADAM, CHOKLY P.O. KANNUR, BY ADV. MR.C.P.PEETHAMBARAN RESPONDENTS/STATE AND DEFACTO COMPLAINANT: ----------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.P. THOMAS, S/O. PHILIP, VALLIKAVUNGAL HOUSE, KOOMMANTHODE P.O. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.66 of 2010 -------------------------- ORDER Petitioner is the accused in S.T.No.109/2008, now pending as L.P.No.247/2008, on the file of Judicial First Class Magistrate's Court, Mattannur, taken cognizance for the offence under Section 138 of Negotiable Instruments Act. As petitioner did not appear, the case was transferred to the register of long pending cases. A non bailable warrant is pending. Petitioner filed C.M.P.No. 3940/2009 under Section 205 of Code of Criminal Procedure for exemption from personal appearance. By Annexure-A2 order, petition was dismissed. 2. Learned counsel appearing for the petitioner was heard. 3. Annexure-A2 order shows that learned Magistrate dismissed the petition on the ground that the case now stands included in the register of long pending cases and as provided under Section CRMC 66/10 2 15(2) of Criminal Rules of Practice, unless the accused person appears, the case cannot be removed from the register of long pending cases and without removing the same, petitioner is not entitled to get exemption from personal appearance. 4. Rule 15 of Criminal Rules of Practice deals with cases in which accused has absconded. Under sub-rule(1) of Rule 15, when process has been issued for the attendance of the accused and the case remained pending for a long time, owing to non-appearance of the accused and Magistrate is satisfied that presence of the accused cannot be secured within a reasonable time, Magistrate is empowered to remove the case from the register of cases and to enter it in the register of long pending cases. Sub-rule(2) of Rule 15 provides that if subsequently the accused person is apprehended or appears or ceases to be insane, the case against him shall be treated as a new case, entered accordingly in the register of cases received and CRMC 66/10 3 dealt with according to law. 5. It is in view of sub-rule(1) of Rule 15 of Criminal Rules of Practice, learned Magistrate has taken a view that presence of the petitioner cannot be exempted before his actual appearance. Sub-rule (2) of Rule 15 provides that after a case is included in the register of long pending cases, if the accused person is apprehended or appears or ceases to be insane, the case is to be entered in the register of cases as a new case. It does not mean that appearance should be personal. If the accused appears through counsel, when the case is included in the register of long pending cases, it cannot be said that it is not the appearance of the accused for the purpose of sub-rule (2) of Rule 15 to enter it in the register of cases. If that be so, learned Magistrate was not justified in dismissing the petition on that ground. This Court has already held that even after issuance of a non bailable warrant, if the accused applies for CRMC 66/10 4 exemption under Section 205 of Code of Criminal procedure in a case taken cognizance for the offence under Section 138 of Negotiable Instruments Act, Magistrate is competent to grant exemption under Section 205 of Code of Criminal Procedure. 5. In such circumstances, Annexure-A2 order is quashed. Learned Magistrate to reconsider C.M.P.No. 3940/2009 and pass appropriate orders in accordance with law. Petition is disposed. 8th January, 2010 (M.Sasidharan Nambiar, Judge) tkv