IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.MC.No. 303 of 2009() -------------------------------------- C.C.NO.159/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, NEDUMANGAD. .................... PETITIONER(S): ACCUSED: ----------------------------------------- BIJIN BABU, S/O.AYYAPPAS, KOTTAARA LANE, GOUREESHAPATTOM VILLAGE NOW RESIDING AT TC 1/1923, HSLRA-23, MEDICAL COLLEGE HIGH SCHOOL LANE, KUMARAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT(S): COMPLAINANT: --------------------------------------------------- THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 303 of 2009 ------------------------------------------------- Dated this the 21st day of January, 2009 ORDER The petitioner faces indictment in a prosecution for offences punishable, inter alia, under Section 304A I.P.C. Investigation is complete. Final report has already been filed. Petitioner had entered appearance before the learned Magistrate and he was enlarged on bail. The petitioner is employed abroad. Therefore he was unable to appear before the learned Magistrate when the matter stood posted for recording the plea of the accused. He applied through his counsel and sought permission to record his plea through his counsel. He made it absolutely clear that he intends to plead not guilty. The application filed by him for exemption from personal appearance and to plead not guilty through his counsel was dismissed by the learned Magistrate by the impugned order. The dismissal is mainly on the ground that Crl.M.C. No. 303 of 2009 -: 2 :- the presence of the petitioner will later be required at the stage of trial and the offence under Section 304A I.P.C. cannot be reckoned as a technical offence involving no moral turpitude or contumacious. 2. The learned counsel for the petitioner submits that the plight of the unfortunate petitioner may be taken into account. He had appeared before the learned Magistrate and was enlarged on bail. On that day his plea was not recorded as required under Section 251 Cr.P.C. Particulars of the offence were not read over to him for no fault of his. He was, in these circumstances, constrained to go back to his place of employment. He is willing to appear for trial; but insistence on his appearance for recording his plea shall work out great prejudice and hardship to the petitioner. When he comes, only the plea will be recorded and the trial will not start. This would mean that the petitioner will have to come to the court twice – first for getting his plea recorded and later for the purpose of trial. The learned Magistrate must, in these circumstances, have taken a fair, reasonable and realistic stand. The petitioner wants to plead not guilty and that is evident. There is no legal embargo against recording such plea through counsel. In these circumstances, a lenient view must have been Crl.M.C. No. 303 of 2009 -: 3 :- taken taking note of the great hardship which the petitioner be put to if he were to return to India for the purpose of recording the plea only. The learned counsel for the petitioner submits that after recording the plea when the case is posted for day-to- day trial, the petitioner shall enter appearance on such date of trial. 3. I find there is no serious dispute on that aspect that plea in a summons case can be got recorded through counsel for the petitioner. The position has been made crystal clear in the decision in Jain Babu v. Joseph (2008 (4) KLT 16) relying on the earlier decision in Bhaskar Industries Ltd. V. Bhiwani Denim & Apparels Ltd., (2001 (3) KLT 307 (SC)). I am of the view that, in the facts and circumstances of this case, the plea of the accused could certainly have been recorded through his counsel as explained in the decisions referred above. 4. In the result: (a) This Crl.M.C. is allowed. (b) The impugned order is set aside. (c) The petitioner is permitted to advance his plea of not guilty through his counsel on condition that he satisfies the procedural requirements. The learned Magistrate shall give the petitioner time to satisfy the procedural requirements, if any Crl.M.C. No. 303 of 2009 -: 4 :- such requirement is not satisfied yet. (d) There shall be a direction that the coercive processes issued against the petitioner shall not be executed and the petitioner shall be permitted to continue on bail. The order canceling bail passed on 28/11/08 is set aside. (e) After recording the plea, the case can be posted for trial on an appropriate date. The petitioner shall be given at least two months' time to get ready for trial. On such dates of trial, the petitioner shall appear in person and participate in the trial as undertaken by the learned counsel for the petitioner. 5. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 303 of 2009 -: 5 :-