IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 CRL.MC.NO. 732 OF 2011() -------------------------------------- AGAINST THE ORDER DATED 04/02/2011 IN CMP.528/2011 IN CC.344/2006 IN OF JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER(S): PETITIONER ------------------------------------------ ABDUL LATHEEF, S/O.KUNHAMKUTTY, PAIKKARATHODI, NEDIYRUPPU AMSOM, MUSLIYARANGADI. BY ADV. SRI.P.M.RAFIQ SRI.K.HAMZA (MALAPPURAM) RESPONDENT(S): RESPONDENT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.732 of 2011 ==================================== Dated this the 10th day of March, 2011 O R D E R Petitioner is accused in C.C. No.344 of 2006 of the court of learned Judicial First Class Magistrate, Malappuram for offences punishable under Sections 323, 452 and 326 of the Indian Penal Code. Case is that on 13.03.2002 at about 8.30 a.m. petitioner trespassed into the toilet of the de facto complainant and caused hurt/grievous hurt to him. Petitioner was present in the trial court during the course of trial but had to go to Brunei in connection with his employment. Now the trial is over. Petitioner wants exemption during the time he is to be examined under Section 313 of the Code of Criminal Procedure (for short, “the Code”) and for the said purpose filed C.M.P. No.528 of 2011. That petition was dismissed by the learned Magistrate. Hence this petition. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. It is not disputed that petitioner was present in the trail court during the course of trial. Learned counsel submitted that petitioner is prepared to attend the court at the time of CRL.M.C. No.732 of 2011 -: 2 :- pronouncement of judgment. Since he is now at Brunei prayer is to exempt him from appearance at the time of his examination held under Sec.313 of the Code. The Supreme Court in Basavraj R.Patil v. State of Karnataka ([2000] 8 SCC 740) has stated the procedure to be followed when one accused who is not present in court is to be examined under Sec.313 of the Code. There is no reason why that procedure should not be adopted in this case. Hence the request of petitioner can be allowed. Criminal Miscellaneous Case is allowed and Annexure-B, order dismissing C.M.P. No.528 of 2011 in C.C. No.344 of 2006 of the court of learned Judicial First Class Magistrate, Malappuram is set aside. That application is allowed to the extent that petitioner is permitted to answer the questions under Sec.313 of the Code in the manner stated by the Supreme Court in the decision referred supra. It is made clear that petitioner shall be present in the court at the time when judgment is to be pronounced. THOMAS P. JOSEPH, JUDGE. vsv