IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.MC.No. 4211 of 2008() ------------------------- PETITIONER(S): --------------- ROHIT S.VED, AGED 29, 30/508, FLAT NO.1, SRI.BHAGAVATHY APARTMENTS, POONKUNNAM, THRISSUR - 2. BY ADV. SRI.RAJIT RESPONDENT(S): STATE -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4211 of 2008 ------------------------------------------------- Dated this the 6th day of November, 2008 ORDER Can a person facing allegations in a prosecution under Sec.138 of the Negotiable Instruments Act and against whom a warrant of arrest – bailable or non-bailable, has been issued by a Magistrate to procure his presence appear before the Magistrate through counsel and claim exemption under Sec.205 Cr.P.C. and plead guilty? Should his personal presence be insisted? This is the short question that is raised by the petitioner in this Crl.M.C. 2. The petitioner faces indictment in prosecutions under Sec.138 of the N.I. Act. The prosecutions are pending before the learned Chief Judicial Magistrate, Thrissur and the learned Judicial Magistrates of First Class, Thrissur and Kunnamkulam. The allegations relate to cheques issued by the petitioner for Crl.M.C. No. 4211 of 2008 -: 2 :- the discharge of liability under the E.S.I. Act and the Employees' Provident Fund Act. In some of the cases, the petitioner has entered appearance. In some others, the petitioner has not entered appearance. In some others, warrants of arrest have been issued against the petitioner. He has already discharged the liability under the cheques. The petitioner wants to appear before such courts through counsel and plead guilty in all the cases. The petitioner apprehends that as warrants are pending against him in some of these cases, he may not be permitted to plead guilty through counsel. It is hence prayed that appropriate directions may be issued to enable him to so appear before the learned Magistrates through counsel and plead guilty. 3. The learned counsel for the petitioner submits that the petitioner is obliged to approach this Court as the question does not appear to have been decided finally and conclusively in Jain Babu v. Joseph (ILR 2008 (4) Kerala 88). As a consequence, Magistrates are insisting even when the accused want to plead guilty or take part in the proceedings through counsel that such applications cannot be entertained without the personal presence of the accused. 4. I find no basis for this apprehension. In Jain Babu in para-16 I have quoted the decision of Mr. Justice K.V. Crl.M.C. No. 4211 of 2008 -: 3 :- Sankaranayaranan in Raman Nair v. State of Kerala (1999 (3) KLT 714). In that, the learned Judge has referred with approval to some decisions “which go to the extent that warrants issued can be withdrawn and exemption granted under S.205 Cr.P.C. on application of the accused.” 5. The question demands and warrants a look at the fundamentals. The summons as well as warrants whether bailable or not are only processes to secure the presence of an indictee before court. Be it not forgotten that both the summons and warrants are only issued in the attempt of the court to secure the presence of the summonee/warrantee. Where the personal presence of such summonee/warantee is not necessary for the progress of the case and he can be exempted from personal appearance before court, there can be no reason to ritualistically insist on the presence of the summoneee/warantee to facilitate consideration of the application for exemption. If personal presence is not required and can be exempted under Sec.205 Cr.P.C., the application for exemption can be allowed without personal presence whether such personal appearance is requested/mandated by issue of summons or warrant. All summons cases, and all other cases where summons is issued at the first instance under Sec.204 Cr.P.C. shall fall within the Crl.M.C. No. 4211 of 2008 -: 4 :- sweep of Sec.205 Cr.P.C. In such a case where the court is satisfied that there is reason to grant exemption under Sec.205 Cr.P.C., the fact that a warrant has been issued later is no reason to insist on the personal presence of the indictee to consider an application for exemption – whether to plead guilty or not guilty. 6. It is for the petitioner to appear before the Magistrate concerned to claim exemption under Sec.205 Cr.P.C. and choose to make appropriate plea. When he makes an application under Sec.205 Cr.P.C., the Magistrate concerned will certainly be not justified in not taking up the application for exemption for consideration merely on the ground that a warrant of arrest has also been issued. Where the plea is one of guilty and the learned Magistrate is satisfied that the counsel has been authorised to make that plea of guilty, I can find no earthly reason which should persuade a Magistrate to insist on the personal presence of such indictee to consider the application for exemption. 7. This Crl.M.C. is allowed to the above extent. The petitioner can appear through his counsel notwithstanding the fact that warrants of arrest are pending against him. He can apply for exemption under Sec.205 Cr.P.C. to make his plea. The learned Magistrate must consider the prayer. To consider Crl.M.C. No. 4211 of 2008 -: 5 :- that prayer, the learned Magistrate need not insist on his personal presence. (R. BASANT, JUDGE) Nan/