IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.MC.No. 158 of 2009(D) ----------------------------- CC.267/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER(S): ACCUSED ------------------------------- ACHI SHAMSUDEEN, AGED 42 YRS, S/O.CHEKUTTY,R/AT KAKKADAMCHAL,MATTOOL NORTH, P.O.MATTOOL NORTH, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): COMPLAINANT/ VICTIM ------------------------------------------------- STATE-REP;BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRL.M.C. NO. 158 OF 2009 = = = = = = = = = = = = = = = Dated this the 23rd day of March, 2009. O R D E R This petition is filed with a prayer to set aside the order in Annexure-AII whereby exemption for personal appearance has been disallowed by the Court below. The learned counsel would submit that the petitioner is employed abroad and he will not get leave and therefore circumstances exist whereby the questionnaire can be furnished to the lawyer to answer. A learned Judge of this Court directed 313 questions prepared to be sent to this Court for verification. I had perused those questions which requires real answering by the accused in the case. It is true that as per the dictum laid down by the Hon'ble Supreme Court in Keya Mukherjee v. Magma Leasing Ltd. (2008(2) KLT 327) if there are sufficient circumstances the accused can be exempted from personal appearance for recording 313 Statement and be allowed to be represented by lawyer. After perusing 313 questions it is to be remembered that thereafter the matter Crl.M.C. 158 OF 2009 -:2:- has to be posted for defence evidence and the judgment has to be pronounced. U/s 353(4) of Cr.P.C. exemption of an accused from appearance before the time of pronouncement of judgment is envisaged when he is exempted from appearance and that he will be convicted only with a fine or he will be acquitted. Fixing the possibility of sentence of imprisonment S.353 does not envisage exemption. So these are all closely linked matters. It is true that when the materials available in a case are so weak the Court which passes these orders may take note of those factors and when it is convinced with the affidavit of the party it can permit personal exemption at the time of 313 examination. But after going through the 313 questions here and just because a person is employed outside it does not confer a right on the party to be away from the Court especially when a crime has been registered as early as in 1988. But at the same time the interest of the accused also is to be protected in criminal cases. Therefore I dispose of the Crl.M.C with a direction to the learned Magistrate to fix a date of Crl.M.C. 158 OF 2009 -:3:- appearance for answering 313 questions in the month of June and immediately thereafter let the matter be heard and the judgment be pronounced within a period of one week from that date. If there are unavoidable circumstances which precludes the accused from appearing before Court just like loosing the job itself etc. the Court can always exercise its jurisdiction and pass appropriate orders. With this direction this Crl.M.C is disposed of. M.N. KRISHNAN, JUDGE. ul/-