IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.MC.No. 3730 of 2011() ------------------------------------- ST.NO.147/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... PETITIONER(S): ACCUSED ----------------------------------------- SANJU, AGED 38 YEARS, S/O. CHAKKUNNY, MEKKATTUKULAM VEEDU, CHALISSERY. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): STATE -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.3730/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX A COPY OF THE JUDGMENT DATED 24/6/09 IN ST.NO.703/07 OF JUDL.FIRST CLASS MAGISTRATE COURT, PATTAMBI. ANNEX B COPY OF THE C.M.P.NO.1557/09 IN ST.NO.147/09 OF JUDL.FIRST CLASS MAGISTRATE COURT, PATTAMBI. ANNEX C COPY OF THE ORDER DATED 20/9/2011 IN ST.NO.147/2009 OF JUDL.FIRST CLASS MAGISTRATE COURT, PATTAMBI. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3730 of 2011 ----------------------------------- Dated this the 2nd day of December 2011 O R D E R Petitioner is the accused in S.T.No.147/2009 on the file of J.F.C.M. Court, Pattambi. In the main case, other accused were already acquitted by the learned Magistrate after trial. A petition was filed by the petitioner under Sec.205 Cr.P.C. requesting that his physical presence may be dispensed with and that his counsel may be allowed to represent him. That petition which was filed on 26.6.2009 was allowed by the learned Magistrate on 29.6.2011. Annexure B is the said petition and order. 2. Learned counsel for the petitioner submits that based on that order the accused was allowed to be represented as can be seen from the proceeding paper for the period from 24.8.2009 to 27.4.2011. No specific order was passed by the learned Magistrate requiring the accused Crl.M.C. No.3730 of 2011 -: 2 :- to be present thereafter. Application was filed on 1.7.2011, 20.8.2011, 20.9.2011 and 22.10.2011 to excuse the absence of the petitioner as the petitioner/accused was abroad. Learned counsel further submits that in fact the physical attendance of the petitioner was not required on 20.9.2011 as well since the witnesses were not present on that day. As the accused was abroad he could not appear on 20.9.2011 and on 22.10.2011 also and as such, NBW was issued and notices have been issued to the sureties. In view of the fact that witnesses were not present for examination and as the petitioner was allowed to be represented as per the earlier order passed by the learned Magistrate under Sec.205 Cr.P.C., the order issuing NBW against the accused is unsustainable, the learned counsel submits. 3. In view of what has been stated above, the order passed by the learned Magistrate issuing NBW to the accused and the notices to the sureties issued under Sec.446 Cr.P.C. shall be recalled. The learned Magistrate Crl.M.C. No.3730 of 2011 -: 3 :- will re-consider as to whether the physical presence of the accused is absolutely necessary for the conduct of the trial in view of the fact that other accused were, after trial acquitted by the learned Magistrate. If the physical presence is absolutely necessary then the learned Magistrate will direct the petitioner to appear in court but giving a reasonable time for him to come to his native place as he is now reported to be working abroad. This Crl.M.C. is disposed of accordingly. N.K.BALAKRISHNAN, JUDGE. Jvt