IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.MC.No. 4324 of 2008() ------------------------- CC.1130/2007 OF THE JFCM COURT, SASTHAMCOTTA. .................... PETITIONER(S): --------------- K.B.RAJEEV, S/O.BHASKARAN SOLAR, PALLITHOTTAM, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. PRAYIKATTU.N.KESAVA PILLAI, PRESIDENT, NSS TALUK UNION, KUNNATHOOR ,PRAYIKATTU VEEDU, KIDANGAYAM NORTH, PATHARAM P.O., SOORANADU SOUTH, KOLLAM. P.P. SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4324 of 2008 ------------------------------------------------- Dated this the 21st day of November, 2008 ORDER The petitioner faces indictment in a prosecution under Secs.406 and 420 read with Sec.34 IPC. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. Altogether, there are two accused persons. The 2nd accused had already come before this Court and an order dated 12/8/08 in Crl.M.C.No.3040/08 was passed in favour of the 2nd accused. The operative portion of the said order reads as follows: 7. This Crl.M.C. is accordingly dismissed. But I proceed to specifically observe that at the stage of Section 239/240 Cr.P.C. the learned Magistrate must consider the plea of the petitioner for discharge in accordance with law. Such consideration must be made Crl.M.C. No. 4324 of 2008 -: 2 :- expeditiously also. 8. In the peculiar facts and circumstances of this case, I am satisfied that a further direction can be issued in favour of the petitioner. It is hence directed that personal presence of the petitioner shall not be insisted by the learned Magistrate until the claim of the petitioner for discharge under Section 239 Cr.P.C. is considered on merits and a decision taken. Till such decision is taken, the petitioner shall be permitted to appear through counsel. Only if the court takes a decision to frame charges against the petitioner, need the court below insist on the personal presence of the petitioner. Until then the petitioner shall be permitted to appear through counsel. 2. The short prayer made by the petitioner who is the 1st accused in the same case is that he may also be granted advantage of the benefit of the directions issued in paras-7 and 8 extracted above. 3. I am satisfied that the said request can be accepted. This Crl.M.C. is accordingly dismissed; but subject to the Crl.M.C. No. 4324 of 2008 -: 3 :- observations contained in paras-7 and 8 extracted above. 4. 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