IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 Crl.MC.No. 3792 of 2011() ------------------------------------ AGAINST THE ORDER DATED 17/06/2011 IN CRMP 2678/11 IN CC.821/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER(S) / ACCUSED: ---------------------------------------- K.NOUJESH, AGED 28 YEARS, S/O.AMBUKUNHI, PAYYANNUR AMSOM, KAVVAI, GANDHI NAGAR COLONY. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S) / COMPLAINANT: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.JASMINE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VPV CRMCNO.3792/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE I : COPY OF PETITION IN C.M.P.NO.2678/2011 DATED 8.6.2011 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR. ANNEXURE II : COPY OF ORDER DATED 17.6.2011 IN C.M.P. NO. 2678/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR. ANNEXURE III: COPY OF ORDER DATED 31.08.2011 IN M.C. NO. 143/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR. ANNEXURE IV: COPY OF ORDER IN CRL.M.C. NO.4820/2010 DATED 8.02.2011 PASSED BY THIS HONOURABLE COURT. ANNEXURE V : COPY OF ORDER DATED 25.11.2010 IN CMP 5579/10 IN C.C.821/10 PASSED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE VPV N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C.No. 3792 of 2011 ------------------------------------------ Dated this the 15th day of December, 2011 ORDER Petitioner is the accused in CC.821/10. The offence alleged against him is under Section 326 IPC. It is stated that a petition was filed under Section 205 Cr.P.C. seeking exemption from personal appearance. But the trial court declined that petition as per order dated 17/06/2011. It is submitted by the learned counsel for the petitioner that in the petition is filed under Section 205 Cr.P.C., it was specifically stated that the counsel engaged by him will appear before the trial court on all posting days and that the questions put under Section 313 of Cr.P.C. will also be answered by the counsel. 2. The request to represent the case throughout by the counsel cannot be entertained since the offence alleged against him is under Section 326 IPC. The crime is of the year 2006. The victim who suffered grievous hurt with deadly weapons will be prejudiced, the learned Public Prosecutor submits. It was pointed before the court below Crl.M.C.No. 3792 of 2011 -: 2 :- that the accused was granted bail on condition that he should furnish a copy of the passport issued to him. But he did not comply with the directions. The learned Magistrate also stated that the petitioner went abroad without the permission of the court and even without informing the court. 2. The learned counsel for the petitioner submits that the petitioner/accused is now abroad. That means the de facto complainant/victim has to wait indefinitely to give evidence and to have his grievance redressed. Justice should be done not only to the accused but to the victim also. The court cannot turn deaf ear to the grievance voiced by the victim. The learned Public Prosecutor submits that it is not a petty offence where the presence of the accused can be dispensed with. It is further submitted by the learned Public Prosecutor that the presence of the accused person is necessary as the identity of the accused will also be in question. In the affidavit, he has stated that he will not Crl.M.C.No. 3792 of 2011 -: 3 :- dispute his identity but it cannot be taken at its face value, the learned Public Prosecutor submits. It was pointed out by the learned Magistrate that since the accused/petitioner failed to appear before the court, his case had to be transferred to the register of LP case after following the procedures prescribed under Sections 82 and 83 Cr.P.C. It was also observed by the Learned Magistrate that the counsel for the accused did not even turn-up for cross- examination of the witnesses on the side of the prosecution when the trial was in progress for some time and as such the case had to be adjourned on several occasions, not only due to the absence of the accused but also because of the absence of the counsel. The learned Magistrate has further observed that though the petitioner had given an undertaking to the effect that he was ready to comply with the directions that may be imposed by the learned Magistrate, the accused did not care to comply with the undertaking given by him. Crl.M.C.No. 3792 of 2011 -: 4 :- 3. The contention that the petitioner should be allowed to be represented by his counsel under Section 205 Cr.P.C. cannot at this stage be allowed since the conduct of the accused would show that he had left country without the permission of the court and the trial was delayed by the contumacious conduct and such devices devised by the accused. When the accused surrenders before court the learned Magistrate will see that all the prosecution witnesses are examined within the shortest possible period so that the case against the petitioner can be disposed of at the earliest. This petition is disposed of as stated above. N.K. BALAKRISHNAN, JUDGE smvd