IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 Crl.MC.No. 939 of 2008() ------------------------ CC.272/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER: ACCUSED: --------------------------------------- SAJITHA, W/O.SANTHOSH K.K., AGED 28, KOOVAPADY VEEDU, ANGAMALY, ERNAKULAM DISTRICT. BY ADV. SRI.R.MURALEEKRISHNAN RESPONDENTS: ---------------------------- 1. PRAKASAN, S/O.APPUTTY, MADATHINGAL, ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.939 of 2008 = = = = = = = = = = = = = = Dated this the 10th day of March, 2008 ORDER The petitioner, a lady who claims to be in the early stage of pregnancy , was the accused in C.C.No.272 of 2007 on the file of the J.F.C.M, Kodungallur in a prosecution under Section 138 of the Negotiable Instruments Act, 1881. 2. On 28.1.08, she was convicted and sentenced by the Magistrate. On that day, the accused and her sureties were present and the sentence was suspended by the trial court under Section 389(3)Cr.P.C for one month and the case was posted to 28.2.08. In the meanwhile on 27.2.08, the petitioner had filed Crl.Appeal No.159/2008 before the Sessions Court, Thrissur and had obtained an order suspending the sentence on certain conditions. Therefore on 28.2.08, the petitioner claims to have filed Annexure A2 petition asking for three days' time for production of the order. Somehow or other the Magistrate appears to have issued non bailable warrants of arrest against the petitioner. On 3.03.08, the petitioner produced the order passed by the Sessions Judge on 27.2.08 suspending the Crl.M.C.No.939 of 2008 2 sentence. 3. The report dated 6.3.08 of the learned Magistrate states that, even though the Magistrate had advanced the case to 3.3.08, since the accused and their sureties were absent, the warrant of arrest was not recalled. 4. The learned Magistrate was not justified in taking such a stand. When as per order dated 27.2.08, the Sessions Court had suspended the sentence subject to certain conditions, there was no obligation on the part of the accused to appear before the learned Magistrate on 3.3.08. Hence, warrant, if any, issued by the Magistrate shall stand recalled and the petitioner will be entitled to avail of the benefit of the order dated 27.2.08 in Crl.M.P.No.791/2008 in Crl.Appeal No.159/2008 of the Sessions Court, Thrissur. This Crl.M.C is disposed of as above. V. RAMKUMAR, JUDGE sj