IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 13TH MARCH 2007 / 22ND PHALGUNA 1928 Crl.MC.No. 669 of 2007() ------------------------ CC.1081/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KOYILANDY .................... PETITIONER: ACCUSED ------------------- N.P.YAHIYA, S/O.MAMMOOTTY, NADUKANDI PARAMBIL HOUSE, PUTHIYANIRATHU, ELATHOOR, KOZHIKKODE DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE & DEFACTO COMPLAINANT ---------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, ELATHOOR POLICE STATION- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. K.K.JASSIM, S/O.MUHAMMED KOYA, LOONA MANZIL, ELATHOOR, KOZHIKODE DISTRICT. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/03/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C.No.669 of 2007 ------------------------------------- Dated this the 13th day of March, 2007 ORDER The petitioner is the accused in a prosecution under Section 406 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The petitioner is employed abroad. He has not entered appearance before the learned Magistrate so far. Consequent to non appearance of the petitioner, a non bailable warrant has been issued against the petitioner. The petitioner has, in these circumstances, come to this Court with the plea that the proceedings against him may be quashed. 2. What is the reason ? The learned counsel for the petitioner submits that even if the entire allegations raised against the petitioner were accepted, cognizance should not have been taken without the requisite sanction under Section 188 Cr.P.C. No previous sanction of the Central Government has been received, it is contended. 3. I am of the opinion that to consider this contention, the entire documents will have to be perused. Where exactly has the offence been committed and what exactly are the allegations raised will have to be scanned. I am of opinion that it is not necessary for this Court to undertake that exercise now and the interests of justice will be served ideally by granting the petitioner an opportunity to raise that contention at the preliminary stage and by directing the Crl.M.C.No.669 of 2007 2 learned Magistrate to consider that contention and pass appropriate order. Such order passed will certainly be amenable to challenge in accordance with law. 4. The learned counsel for the petitioner submits that a non bailable warrant has been issued and the learned Magistrate is not likely to consider the contention without personal appearance of the petitioner before the learned Magistrate. Appropriate directions can be issued in that regard also to protect the interests of the petitioner. 5. In the result, this Crl.M.C is, allowed in part. It is directed that the petitioner can appear through counsel before the learned Magistrate and raise this objection at the stage of Section 239/240 Cr.P.C. The learned Magistrate must consider the said objection and take appropriate decision. The non bailable warrant issued against the petitioner should be withdrawn and the petitioner shall be permitted to appear through counsel to raise this plea. Only if the learned Magistrate feels that the objection is not liable to be sustained and charges have to be framed against the petitioner under Section 240 Cr.P.C, shall the learned Magistrate insist on the personal appearance of the petitioner, thereafter. Needless to say that the decision under Section 239/240 Cr.P.C shall be taken as expeditiously as possible by the learned Magistrate at any rate, within 2 months of the date on which a copy of this order is placed before the learned Magistrate. Crl.M.C.No.669 of 2007 3 6. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/-