IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 Crl.MC.No. 954 of 2010() ---------------------------------- CC.541/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONER/ACCUSED ---------------------------------- K.P. MOHAMMED, S/O.HASSAN HAJI, K.P. HOUSE, BEERICHERI, THRIKARIPUR P.O., KASARGOD DT. BY ADV. MR.A.MOHAMED MUSTAQUE RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------ 1. THE EXCISE INSPECTOR, THALASSERY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 954 OF 2010 =========================== Dated this the 19th day of March,2010 ORDER Petitioner the accused in C.C.541/2008 on the file of Judicial First Class Magistrate's Court, Thalassery was granted exemption under section 205 of Code of Criminal Procedure. Prosecution witnesses 1 to 3 were examined on 29.10.2009. The case was posted for further evidence to 7.12.2009. On that day one of the remaining prosecution witness was earlier examined in chief. As petitioner was earlier granted exemption, he was not present. Though he had undertaken that his counsel will be present when the case was taken,his counsel was absent. There was no representation also. In such circumstances, learned Magistrate cancelled the exemption granted originally and issued non bailable warrant. Petitioner Crl.M.C.954/2010 2 through his counsel filed Annexure A1 petition stating that his counsel was engaged in Additional Sub Court and he had entrusted the matter with a colleague to represent before the learned Magistrate but he omitted to make any representation and therefore the case is to be advanced and non bailable warrant is to be recalled. Learned Magistrate, as per order dated 10.12.2009 advanced the case and recalled the non bailable warrant and posted the case to 2.2.2010. On 2.2.2010 petitioner was absent. Hence non bailable warrant was issued. This petition is filed under section 482 of the Code of Criminal Procedure for a direction to the Magistrate to recall the non bailable warrant and also to quash the order cancelling the exemption originally granted. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel submitted that the failure Crl.M.C.954/2010 3 to represent the case on the counsel to appear before the court on 7.12.2009 was not wilful as the counsel appearing for the petitioner was engaged in another court and though he had entrusted the matter with his colleague but he failed to represent and on the failure of that counsel to represent, exemption was cancelled and in such circumstances, the order cancelling the exemption is to be quashed. 4. When an accused is granted exemption under section 205 of Code of Criminal Procedure, on his representation that on his behalf his counsel will appear, and when the case was posted for further evidence after chief examination of the prosecution witness, the counsel for the accused was not present for cross examination and there was no representation, learned Magistrate cannot find fault for issuing non bailable warrant or cancelling the permission granted as petitioner has not complied with the conditions granting Crl.M.C.954/2010 4 exemption. But failure of the counsel to appear on a day shall not be taken as a valid ground to deny the exemption originally granted to the accused so long as it is not due to his fault and the failure of the counsel was explained. In such circumstances, petition is allowed. Judicial First Class Magistrate , Thalassery is directed to recall the non bailable warrant, if the petitioner files an application and undertakes that his counsel will be present on the day posted for examination of the remaining witnesses. It is made clear that if the counsel does not appear as undertaken, the learned Magistrate is at liberty to cancel the exemption, in which case, petitioner is not entitled to seek further exemption from appearance. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006