IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 CRL.MC.NO. 336 OF 2011() -------------------------------------- ST.1732/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA PETITIONER(S): PETITIONER/ACCUSED ----------------------------------------------------------- ANI, AGED 43 YEARS, W/O.TOMY, PAZHAMPILLIL HOUSE, THOTTAKKATTUKARA, ALUVA. BY ADV. SRI.M.TRIPTEN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------------------------- 1. ABRAHAM CHACKO, S/O.ABRAHAM, OLIYIL HOUSE, KOZHIPPILLY KARA, PALAKKUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 336 of 2011 ==================================== Dated this the 07th day of February, 2011 O R D E R Petitioner is accused in S.T. No.1732 of 2008 of the court of learned Judicial First Class Magistrate-I, Muvattupuzha for offence punishable under Section 138 of the Negotiable Instruments Act. She requests to quash Annexure-A4, order passed by the learned Magistrate on C.M.P. No.1439 of 2010 on 23.12.2010 and to issue a direction to the learned Magistrate to exempt the petitioner from personal appearance before the learned Magistrate in the course of trial. Learned counsel submits that petitioner was laid up since the last few years on account of back pain and was not served with summons from the court of learned Magistrate. It is submitted that petitioner is prepared to surrender and seek regular bail but petitioner is apprehensive of her remand to judicial custody. Hence direction is sought to release petitioner on bail on the day she surrenders in the court of learned Magistrate. 2. In the light of the decision in Martin v. State of Kerala (2004 [2] KLT 1037) no such direction could be issued. CRL.M.C. No.336 of 2011 -: 2 :- But if an application for bail is preferred, learned Magistrate has to consider the attending circumstances including the fact that petitioner is a lady and according to her, she was laid up due to back pain and was not served with summons. Learned Magistrate shall also consider whether a remand is required in a case of this nature involving offence under Section 138 of the Negotiable Instruments Act. 3. So far as Annexure-A4, order dated 23.12.2010 on C.M.P. No.1439 of 2010 is concerned it is seen that request to grant permanent exemption under Sec.205 of the Code of Criminal Procedure (for short, “the Code”) was disallowed for the reason that “accused is absconding and steps under Secs.82 ad 83 of the Code are completed and sanction of the Chief Judicial Magistrate is awaited”. It was in the above circumstances, in the absence of petitioner from that court that learned Magistrate was not inclined to allow C.M.P. No.1439 of 2010. I make it clear that after petitioner appears before the learned Magistrate it will be open to the petitioner to make appropriate application under Sec.205 of the Code and if any such application is preferred learned Magistrate shall dispose of the same as provided under CRL.M.C. No.336 of 2011 -: 3 :- law. This Criminal Miscellaneous Case is disposed of with the above directions. THOMAS P. JOSEPH, JUDGE. vsv