IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 OP(Crl.).No. 203 of 2010(Q) --------------------------------------- ST.113/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, TIRUR .................... PETITIONER/ACCUSED ---------------------------------- SIVADASAN, AGED 25 YEARS, S/O.ARUMUGHAN, VELLIYEDATH HOUSE, ITTILAKKAL, P.O.PONKUNNAM. BY ADV. SRI.MATHEW ABRAHAM RESPONDENTS/COMPLAINANT ---------------------------------------------- 1. BINOD, AGED 29 YEARS, S/O.GOPALAKRISHNAN NAIR, PRAYAG, OZHUR P.O., THANUR POLICE STATION LIMIT – 676 313. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== O.P.(Crl).No. 203 OF 2010 =========================== Dated this the 21st day of October,2010 JUDGMENT Petitioner is the accused in S.T.113/2010 on the file of Judicial First Class Magistrate- II taken cognizance for the offence under section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. According to petitioner, after closing the evidence of the first respondent, learned Magistrate directed the petitioner to be present in person and as the offence alleged is only under section 138 of Negotiable Instruments Act, learned Magistrate should not have insisted for the presence of the petitioner. As petitioner did not appear as directed, learned Magistrate has already issued a non bailable warrant. This petition is filed under Article 227 of the Constitution of India O.P.(Crl.) 203/2010 2 for a direction to the Magistrate not to insist for the personal appearance of the petitioner for questioning under section 313 of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel submitted that petitioner had filed an application under section 205 of Code of Criminal Procedure and his presence was dispensed and in such circumstances, learned Magistrate is not justified in insisting for the presence of the petitioner. 4. Normally in a case taken cognizance for the offence under section 138, if an application is filed, learned Magistrate not to insist for the personal presence of the accused for questioning under section 313 of Code of Criminal Procedure, if his presence was dispensed with earlier on an application filed under section 205 of Code of Criminal Procedure. If after allowing an application under section 205 Cr.P.C., the counsel O.P.(Crl.) 203/2010 3 for the petitioner as promised did not appear before the learned Magistrate, it is possible that learned Magistrate insisted for the presence of the accused. From the material it is not possible to hold that learned Magistrate directed personal presence of the accused illegally. Petition is disposed making it clear that learned Magistrate not to insist for the presence of the petitioner for questioning under section 313 of Code of Criminal Procedure, if his presence was dispensed under section 205 Code of Criminal Procedure earlier. Even if it was not permitted earlier, if a petition is filed under section 205 Code of Criminal Procedure learned Magistrate to consider the same in accordance with law and pass appropriate orders. If petitioner files an application for recalling the non bailable warrant, learned Magistrate to pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- O.P.(Crl.) 203/2010 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006