IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Crl.MC.No. 3295 of 2009() ------------------------- CC.154/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM (L.P.93/2002) .................... PETITIONER(S): ACCUSED ---------------------- V.MUHAMMED, KUNNUMEL VEEDU,KEEZHOOR P.O., IRITTY,KANNUR. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. SHIBU K.,S/O.KRISHNAN NAIR, "REVATHY",THEKKEVILA,KOLLAM. R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3295 OF 2009 ------------------------------------------ Dated 14th October 2009 O R D E R Petitioner is the accused in L.P.93/2002 on the file of Judicial First Class Magistrate-II, Kollam and facing trial for the offence under Section 138 of Negotiable Instruments Act. After completing steps under Sections 82 and 83 of Code of Criminal Procedure case is now pending in the register of long pending cases. Petitioner approached this court by filing Crl.M.C.2975/2009 for a direction to the Magistrate to consider the application filed for exemption under Section 205 of Code of Criminal Procedure, without insisting for his personal presence. Under Annexure- A4 order Crl.M.C was disposed making it clear that Magistrate is to act in accordance with law. Petition filed under Section 205 of Code of Criminal Procedure was thereafter heard and was dismissed by Annexure-A6 order by the learned Magistrate. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A6 order. CRMC 3295/09 2 2. Learned counsel appearing for the petitioner was heard. 3. Learned Magistrate did not grant permission under Section 205 of Code of Criminal Procedure, though decision of this court in Jain Babu v. Joseph (2008 (4) KLT 16) brought to his notice. It was for the reason that the decision does not apply to an absconding accused. Learned Magistrate has also stated that Section 174A of Indian Penal Code applies to the case. There is no case that petitioner committed offence under Section 174 of Indian Penal Code. In such circumstances, there is no justification for rejecting the prayer based on Section 174 of India Penal Code. 4. On going through Annexure-A5 petition filed by the petitioner, it is seen that there is no undertaking by the petitioner that evidence could be recorded in his absence, treating the presence of his counsel as his presence and that he will not challenge the evidence so recorded, before that court or before the appellate court or the revisional court. If exemption is to be granted at the time of recording the evidence, necessarily there should be an CRMC 3295/09 3 undertaking to that effect. Petitioner is granted liberty to file a proper application before the learned Magistrate. If such a proper application is filed, Magistrate to grant the exemption. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.