IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.MC.No. 4819 of 2008() --------------------------------- SC. NO.231/2007 OF THE ADDL. SESSIONS COURT (FAST TRACK COURT NO.II, MANJERI. ....... PETITIONER(S): ACCUSED ---------------------- ASHARAF, S/O. MOIDEENKUTTY, PERACHAN HOUSE, KEEZHUPARAMBA, PATHANAPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE ------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,KOCHI-31. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4819 of 2008 ------------------------------------- Dated this the 12th day of December, 2008 ORDER Petitioner faces indictment in a prosecution for offences punishable under Section 304 B and 498 A I.P.C. Altogether there were 3 accused persons. The petitioner is the husband of the deceased. Accused 2 and 3, relatives of the petitioner, have already been tried, found not guilty and acquitted. The petitioner was not available for trial at that stage. Later, the petitioner appeared. The learned Magistrate felt that an offence under Section 304 B I.P.C is also revealed prima facie and therefore invoked the powers under Section 323 Cr.P.C to commit the case to the Court of Session. The case was numbered as a Sessions Case. The petitioner participated in the proceedings. But on account of compulsions of his employment, he had to leave for his place of employment abroad. Trial is not complete. Consequent to the non appearance of the petitioner, non bailable warrant has been issued against the petitioner. 2. According to the petitioner, the petitioner is not willfully avoiding the court. He is also very much interested in ensuring that the trial is completed as expeditiously as possible. Crl.M.C. No.4819 of 2008 2 The petitioner is now abroad and it is impossible for him to immediately appear before the learned Sessions Judge. The petitioner is willing to proceed with the trial in the absence of the petitioner by seeking permission from the Court to permit the petitioner to be represented by his counsel. The petitioner has not made any application to that effect so far. The learned counsel for the petitioner submits that the petitioner shall be effectively represented by his counsel and that at any rate it is not necessary to discontinue the trial when the petitioner is willing to be represented through his counsel. 3. I have considered the submission of the learned counsel for the petitioner. It must be in the interests of all concerned to ensure expeditious completion of trial. If personal presence of the petitioner is not required and it is not essential to complete the proceedings as submitted by the learned counsel for the petitioner and the counsel is willing to represent the accused under Section 317 Cr.P.C, I can find no reason why such an application cannot be considered by the learned Sessions Judge. At any rate, the learned Sessions Judge must consider such application on merits and in accordance with law. Crl.M.C. No.4819 of 2008 3 4. The mere pendency of a warrant, it has already been held, is no reason not to consider such an application filed by the learned counsel for the petitioner. 5. This Crl.M.C is, in these circumstances, dismissed, but with the specific observation that it shall be open to the petitioner to make an application through his counsel for exemption from personal appearance, so that trial can be proceeded with without any delay. The learned Sessions Judge must consider such application and pass appropriate orders. I make it clear that the mere pendency of the non bailable warrant cannot be reckoned as a sufficient reason not to consider such application on merits. (R.BASANT, JUDGE) rtr/-