IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Crl.MC.No. 3510 of 2009() ---------------------------------------- CC.463/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER(S): ACCUSED NO.2 --------------------------- P.V. SIVADASAN, S/O. LATE RAMANKUTTY NAMBIAR, 46/06, CHANDROTH HOUSE, KADAMBOOR AMSOM, EDAKKADE. BY ADV. MR.M.V.AMARESAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3510 OF 2009 ------------------------------------------ Dated 16th November 2009 O R D E R Petitioner is the second accused in C.C.463/2007 on the file of Judicial First Class Magistrate, Payyannur taken cognizance for the offences under Sections 406, 420, 468, 471 read with Section 34 and 120B of Indian Penal Code. Petitioner filed Annexure-1 application (C.M.P.4899/2008) for exemption from personal appearance for recording the plea as well as answering the question under Section 313 of Code of Criminal Procedure stating that he was unemployed for a long time and finally got employment in Gulf countries and in such circumstances, he may not be in a position to appear personally on all occasions and therefore, exemption is to be granted. By Annexure-2 order dated 4/9/2008, learned Magistrate allowed the application in part granting exemption from personal appearance for the time being and directing that he shall appear as and when directed. It was also found that even the charge Crmc 3510/09 2 is not framed and therefore, petitioner is at liberty to move at the appropriate stage. Petitioner thereafter filed Annexure-3 petition stating that he has been granted permission from personal appearance and permission was not granted to answer the question under Section 313 of Code of Criminal Procedure and therefore, he is to be permitted to plead and to answer the question under Section 313 of Code of Criminal Procedure. By Annexure-4 order petition was dismissed on the ground that petitioner was not granted permanent exemption and petition filed earlier does not contain necessary averments to grant permanent exemption and in such circumstances, petitioner cannot be permitted to appear through the pleader for recording his plea. This petition is filed to quash Annexure-4 order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though learned counsel submitted that permanent exemption was granted under Annexure-2 order, as is clear from the order personal appearance of the petitioner was dispensed only for the time being making it clear that question of exemption for recording the Crmc 3510/09 3 plea would arise only at a later stage and petitioner is at liberty to apply for the same at the appropriate stage. Therefore, petitioner was not justified in filing Annexure-3 petition, as if he was granted permanent exemption, except for recording the plea and to answer the questions under Section 313 of the Code of Criminal Procedure. But there is force in the submission that learned Magistrate was not justified in issuing non bailable warrant when his presence was dispensed under Section 205 earlier for the time being. Petitioner could very well be permitted to record his plea, after framing the charge and personal presence of the petitioner need not be insisted. 4. Question whether exemption is to be granted under Section 205 at the time of recording the evidence is necessarily to be considered by the Magistrate on a proper application filed at that time. Exemption could be granted only if the petitioner files an affidavit undertaking that evidence could be recorded in his absence, treating the presence of his counsel as his presence and he will not challenge the evidence so recorded before that court or before appellate court or revisional court. Crmc 3510/09 4 Petition is disposed directing Judicial First Class Magistrate, Payyannur to re-call warrant issued against the petitioner/second accused in C.C.463/2007 and to permit the petitioner to plead, without personal presence, through his counsel. Question whether exemption under Section 205 of Code of Criminal Procedure is to be granted at the time of recording the evidence is to be considered by the Magistrate on a proper application filed at that stage. M.SASIDHARAN NAMBIAR, JUDGE. uj.