IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Crl.MC.No. 3707 of 2009() -------------------------------- CC.517/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER(S): ACCUSED NO.1 --------------------------- ULLI KOVAL MUHAMMED RAFEEQUE, S/O. ABDUL KHADER, AGED 26 YEARS, RAMANTHALI AMSOM, VADAKKUMBAD CENTRE. BY ADV. MR.M.V.AMARESAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3707 OF 2009 ------------------------------------------ Dated 18th November 2009 O R D E R Petitioner is the first accused in C.C.517/2007 on the file of Judicial First Class Magistrate-I, Payyannur. Petitioner is working in Gulf countries. Petitioner filed C.M.P.6491/2008, an application under Section 205 of Code of Criminal Procedure to dispense with his presence at the time of trial. By Annexure-2 order learned Magistrate dismissed the petition. On the same day as presence of the petitioner is not procured and it is represented that he is in Gulf countries, case as against him was split up and summons was issued to the witnesses to be examined as against the remaining accused by Annexure-3 order. This petition is filed under Section 482 of Code of Criminal Procedure to set aside Annexure-3 order splitting up the case against him and permit the petitioner to allow to file a proper application under Section 205. 2. Learned counsel appearing for the Crmc 3707/09 2 petitioner was heard. 3. Learned counsel submitted that petitioner will file a proper application under Section 205 of Code of Criminal Procedure and he may be permitted to file the petition. Learned counsel also submitted that by Annexure-3 order bail granted to the petitioner was not cancelled and case was only split up and therefore, the order is to be quashed. 4. When learned Magistrate found that there are eight accused and as one of the accused is not in India and so the case cannot be disposed, by Annexure-3 order learned Magistrate split up the case as against the petitioner, so that the case could be disposed as against the remaining accused. I find no illegality in that order because for the non availability of one accused, the case as against the remaining accused need not be kept pending and case was split up only for disposing the case without undue delay. In such circumstances, prayer to quash Annexure-3 order can only be rejected. 5. By Annexure-2 order learned Magistrate dismissed the petition for the reason that petition was not sufficient to grant permission. Learned counsel Crmc 3707/09 3 also agreed that the petition was not proper. In such circumstances, the petition can only be dismissed. But dismissal of the application under Annexure-2 order shall not stand in the way of the petitioner for filing a proper application. If proper application is filed for permission under Section 205 of Code of Criminal Procedure, learned Magistrate can grant the permission and can club this case along with remaining accused if it will not cause delay in the trial of remaining accused. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.