IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 Crl.MC.No. 1067 of 2010() ------------------------- AGAINST THE ORDER DATED 14/01/2010 IN CRMP 47/2010 IN SC.390/2009 of SESSIONS COURT, TRIVANDRUM .................... PETITIONER/ACCUSED ---------------------- SUDARSANAN, S/O. KESAVAN, PUNARDHAM VEEDU, KALLOWKONAM, CHERUKUNNOM DESOM, VARKALA VILLAGE. BY ADV. SRI.R.GOPAN RESPONDENT --------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.M.C. No. 1067 OF 2010 -------------------------- Dated this the 26th day of March, 2010 O R D E R Petitioner is the accused in S.C. No.390/2009 on the file of file of Sessions Court, Thiruvananthapuram. The case was posted for questioning under Section 313 of Code of Criminal Procedure. On 14.1.2010, petitioner through his counsel filed Annexure-I petition for permission to answer the questions under Section 313 of Code of Criminal Procedure, through his counsel. When the case was taken up, the counsel was absent. The learned Sessions Judge passed Annexure-III order no representation for the petitioner, counsel also absent. As neither the counsel nor any representative was present, Annexure-II petition was dismissed. Consequently, by Annexure-IV order, learned Sessions Judge cancelled the bail and initiated steps against the sureties under Section 446 of Code of Criminal Procedure. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-III and Annexure-IV orders. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that the petitioner is now working in Gujarat and the evidence in the case was recorded Crl.M.C.No.1067/2010 2 in his absence, as petitioner filed applications on each day to dispense with his presence and when the case was taken up on 14.1.2010, his counsel was appearing before another court and though he had entrusted a junior counsel to represent the case, he failed to make representation and consequently orders were passed and in such circumstances, the petitioner is to be permitted to answer the questions under Section 313, through his counsel and Annesure-III and Annexure-IV orders are to be quashed. 4. When the case is posted for questioning under Section 313 of Code of Criminal Procedure and the accused as well as his counsel were absent and there was no representation, learned Sessions Judge cannot be find fault for passing Annexure-III and IV orders. Even though a petition was filed for permission to answer questions under Section 313 of Code of Criminal Procedure through the counsel, when the counsel was also absent, learned Sessions Judge was justified in dismissing the petition, as has been done by Annexure-III order. In such circumstances, I find no illegality in Annexure-III and Annexure-IV orders. 5. When for the failure of the counsel to be present, when the Crl.M.C.No.1067/2010 3 case was called, by which Annexure-III and Annexure-IV orders happened to be passed, it is up to the counsel to file appropriate application before the learned Sessions Judge. If appropriate applications are filed, it is for the learned Sessions Judge to consider the same and pass appropriate orders in accordance with law. I do not believe that for the sole reason that the counsel was absent on 14.1.2010 and consequently the petition was dismissed and non bailable warrant was issued, learned Sessions Judge will not consider the application in accordance with law. Petitioner is also at liberty to file application to recall the non bailable warrant showing valid reasons. Petition is disposed. M.SASIDHARAN NAMBIAR, (JUDGE ) vps Crl.M.C.No.1067/2010 4 Crl.M.C.No.1067/2010 5