IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Crl.MC.No. 1863 of 2011() ------------------------------------ AGAINST THE JUDGEMENT/ORDER IN CRRP.673/2011 Dated 04/03/2011 CC.1333/2008 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR (MP.1036/2011) .................... PETITIONER(S): ACCUSED ---------------------------------------- BABY, AGED 42 YEARS, S/O. VARGHESE, ARAKKAL HOUSE, DOOR NO.978, NEAR G.P. THEATRE, RADHAKRISHNAN ROAD, COIMBATORE DISTRICT, TAMIL NADU, PRESENTLY RESIDING AT C/O.C.V.THOMAS, CHERUMADATHIL HOUSE, BHAVANA NAGAR,ANGAMALY, ERNAKULAM DISTRICT. BY ADV. SRI.E.C.POULOSE SMT.BOBBY RAPHEAL.C RESPONDENT(S): STATE -------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.1863/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A-1: COPY OF THE FIR & CHARGE SHEET IN C.C.NO.1333/2008 ON THE FILE OF JUDICIAL FIRST CLASSE MAGISTRATE COURT 1, PERUMBAVOOR. ANNEX.A-2: COPY OF THE ORDER DATED 4/3/2011 IN CRL.R.P.NO.673/2011 OF THIS HON'BLE COURT. ANNEX.A-3: COPY OF THE PETITION UNDER SECTION 205 FILED BY THE PETITIONER BEFORE THE COURT BELOW. ANNEX.A-4: COPY OF THE ORDER DATED 30/3/2011 IN M.P.NO.1036/2011 IN C.C.NO.1333/2008 OF JFCM-1, PERUMBAVOOR. ANNEX.A-5: COPY OF THE ORDER DATED 4/6/2011 IN M.P.NO.1834/2011 IN C.C.1333/2008 OF JFCM-1, PERUMBAVOOR. ANNEX.A-6: COPY OF THE MEDICAL CERTIFICATE DATED 25/5/2011 ISSUED FROM S.D.A CLINIC & PHARMACEUTICALS, PERUMBAVOOR TO THE PETITIONER. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1863 of 2011 ==================================== Dated this the 21st day of June, 2011 O R D E R Petitioner is accused in C.C. No.1333 of 2008 of the court of learned Judicial First Class Magistrate-I, Perumbavoor for offence punishable under Section 420 of the Indian Penal Code. Learned Magistrate took cognizance of the said offence on the final report submitted in Crime No.1690 of 2008 of Perumbavoor Police Station. Allegation is that petitioner obtained Rs.5 lakhs from the de facto complainant on a promise to return Rs.50 lakhs on encashing the bond for Rs.54,000/- Crores from the Reserve Bank of India and for repayment of the amount borrowed, issued a cheque. Petitioner sought his discharge before learned Magistrate which prayer was disallowed. That order was challenged in this Court in Crl. R.P. No.673 of 2011. This Court by order dated 04.03.2011 refused to interfere with the order passed by learned Magistrate but considering the request of petitioner for exemption from personal appearance permitted petitioner to move application before learned Magistrate under Section 205 of the Code of Criminal Procedure. Pursuant to that order petitioner preferred Annexure-A3, petition – M.P. No.1036 of 2011 before learned CRL.M.C. No.1863 of 2011 -: 2 :- Magistrate seeking exemption from personal appearance. That petition was dismissed on 30.03.2011. The said order is under challenge. It is submitted by learned counsel that dismissal of Annexure-A3, petition is not proper and is without assigning any valid reason. It is submitted that pursuant to Annexure-A4, order petitioner filed M.P. No.1834 of 2011 seeking adjournment of the case. But that application was dismissed as per Annexure-A5, order and that is followed by a non-bailable warrant. Learned counsel requests that Annexures-A4 and A5, orders passed by the learned Magistrate may be quashed. I have heard learned Public Prosecutor also. 2. It appears from Annexure-A4, order that learned Magistrate dismissed M.P. No.1036 of 2011 for two reasons; firstly, there was no material to show that petitioner is suffering from Arthritis and secondly, even the address given by petitioner in M.P. No.1036 of 2011 would show that he is staying at Coimbatore which is in violation of the condition imposed on petitioner while granting bail that he shall not leave local limits of Perumbavoor Police Station. 3. It is pointed out by learned counsel that even in Annexure-A1, final report the address of petitioner is given as if CRL.M.C. No.1863 of 2011 -: 3 :- he is permanently residing at Coimbatore but admittedly staying at Angamaly in a rented premises. Learned counsel submitted that address of petitioner happened to be mentioned in Annexure- A3, petition in view of the statement in the final report regarding his permanent residence. Learned counsel submitted that petitioner is still staying in Angamaly. It is submitted that petitioner has produced Annexure-A6, photocopy of Medical Certificate dated 25.05.2011 to show that petitioner is suffering from illness and is unable to attend the court regularly. 4. It would appear that learned Magistrate while granting bail to the petitioner had imposed a condition that he shall not leave the local limits of Perumbavoor Police Station. There was no report from the police about any non-compliance of the condition. The explanation offered by petitioner requires consideration. But no such explanation was either offered before or considered by learned Magistrate. Annexure-A6, Medical Certificate now pressed into service has also to be considered by the learned Magistrate having regard to the nature of the allegations and possibility of any dispute regarding identity of the offender and this Court had permitted petitioner to move application in the trial court. CRL.M.C. No.1863 of 2011 -: 4 :- Resultantly, Criminal Miscellaneous Case is allowed. Annexure-A4, order passed by the learned Magistrate on M.P. No.1036 of 2011 in C.C. No.1331 of 2008 is set aside. That petition is remitted to the learned Magistrate for fresh decision after giving petitioner opportunity to produce the Medical Certificate and explain the circumstances under which his address was shown in M.P as residing at Coimbatore. Warrant of arrest issued to the petitioner will stand in abeyance until learned Magistrate disposed of M.P. No.1036 of 2011. Learned Magistrate shall expedite disposal of M.P. No.1036 of 2011 having regard to the various aspects of the case and observations made above. THOMAS P. JOSEPH, JUDGE. vsv