IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 Crl.MC.No. 2525 of 2009(A) ------------------------------------ AGAINST THE ORDER IN CMP 543/09 IN CC.174/2001 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM ...................................... PETITIONER(S): ACCUSED -------------------------------------- 1. K.C.JAMES, S/O.CHACKO, KURIANPARAMBIL VEEDU, KURUPANTHARA, MANJOOR VILLGE, VAIKOM TALUK. 2. MOLLY JAMES, W/O.K.C.JAMES, -DO- -DO- BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SANTHA, W/O.CHANDRASEKHARAN, KOCHUPARAMBIL VEEDU, MANJOOR SOUTH, MANJOOR VILLAGE, VAIKOM TALUK. PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2525 of 2009 -------------------------- ORDER Petitioners are the accused in C.C.No.174/2001 on the file of Judicial First Class Magistrate's Court, Vaikom. Petitioners are husband and wife. Originally, petitioners filed Crl.M.C.No.2990/2003 under Section 482 of Code of Criminal Procedure and got the proceedings before the Magistrate stayed. Subsequently, on 27.7.2007, for non prosecution, the said Crl.M.C. was dismissed. Petitioners, who obtained bail earlier, thereafter did not appear. Learned Magistrate issued non bailable warrant against them. Petitioners, through their counsel, then filed C.M.P.No.543/2009, under Section 205 of Code of Criminal Procedure for permission to appear, plead and answer the questions at the time of trial through their counsel. Under Annexure-3 order, learned Magistrate dismissed the petition. This petition is filed under Section 482 of Code of CRMC 2525/09 2 Criminal Procedure to quash Annexure-3 order and to direct the Magistrate to permit them to appear through counsel. 2. Learned counsel appearing for the petitioners and learned Public prosecutor were heard. 3. Learned counsel appearing for the petitioners submitted that the earlier Crl.M.C. was not disposed on merits, but, due to non prosecution of the case, consequent to the change of counsel and petitioners are now settled in Gulf and the offences alleged against them are only under Sections 417 and 506(i) of Indian Penal Code and in such circumstances, learned Magistrate should have granted permission to appear and plead the case through counsel. 4. Annexure-II is the petition filed before the Magistrate. Though, in the petition permission was sought to plead as well as to dispense with presence of the petitioners at the time of trial, there was no undertaking that evidence could be CRMC 2525/09 3 recorded in their absence, treating the presence of the counsel as their presence and that they will not challenge the evidence so recorded either in that proceedings or in appeal or in revision. In the absence of such undertaking, Annexure-II petition cannot be allowed. Learned counsel appearing for the petitioners then submitted that petitioners may be permitted to file a fresh petition and as charge was not framed, they may be permitted to seek discharge through the counsel without insisting for the presence of the petitioners. Petition is disposed permitting petitioners to file a proper application before the Magistrate to dispense with their presence for the purpose of trial and also for filing a petition for discharge under Section 245 of Code of Criminal Procedure. 18th August, 2009 (M.Sasidharan Nambiar, Judge) tkv