BASHEER AHMED and KHADEEJA v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 Crl.MC.No. 680 of 2011() -----------------------CRIME NO.43/08 OF KASARAGOD POLICE STATION CC.500/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................... PETITIONER(S): ACCUSED ---------------------- 1. BASHEER AHMED, AGED 74 YEARS, BASHEER BAUGH, VIDYANAGAR, KASARAGOD. 2. KHADEEJA, AGED 65 YEARS, W/O.BASHEER AHMED, BASHEER BAUGM, VIDYANAGAR, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REP.BY INSPECTOR OF POLICE, KASARAGOD POLICE STATION, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ Crl.M.C. No.680 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 16[th] day of March 2011** ## **O R D E R** Petitioners are accused 2 and 3 in Crime No.43 of 2008 of Kasaragod Police Station and C.C.No.500 of 2008 of the Court of learned Chief Judicial Magistrate, Kasaragod. A case was registered against the first accused, son of petitioners for offence punishable under Section 498A of the Indian Penal Code (for short “the IPC”) on the complaint of his wife. When that case was on trial, learned Chief Judicial Magistrate invoked Section 313 of the Code of Criminal Procedure (for short “the Code”), by order dated 18.11.2010 impleaded petitioners as accused 2 and 3. Summons was ordered to them. The case was posted on 13.12.2010. On that day, petitioners applied for exemption through counsel and that was allowed. Since Crl.M.C. No.680 of 2011 -: 2 :- petitioners/accused 2 and 3 did not appear in the court thereafter, it is stated, learned Chief Judicial Magistrate issued non bailable warrants to them. Though, various grounds are urged in this case even including correctness of the order of impleadment of petitioners as additional accused, prayer in the case is only to dispense with personal appearance of petitioners in the court below. Learned counsel submits that petitioners are aged around 74 years and that the first petitioner being a heart patient is totally bed ridden and unable to go to the court. Petitioners have produced certain documents showing treatment given to the first petitioner/A2. Learned counsel has requested that in the above circumstnace, petitioners may be exempted from personal appearance in court and that non bailable warrant issued to them may be quashed. I have heard the learned Public Prosecutor also. 2. So far as 2[nd] petitioner/accused 3 is concerned, there is no case of any illness for her or she being bed Crl.M.C. No.680 of 2011 -: 3 :- ridden and unable to go to the court. Hence, she has to appear in court and seek regular bail and exemption from appearance. 3. So far as the first petitioner is concerned, I am inclined to think that indulgence of this Court is necessary having regard his age and illness and the peculiar situation in which he is placed. It is seen from the documents produced that the first petitioner has been undergoing prolonged treatment for heart deceases. Learned counsel submits that the first petitioner had also undergone inpatient treatment for the said illness. I do not find reason to reject the submission of learned counsel. 4. Now the question is whether the non bailable warrant issued to the first petitioner is liable to be quashed and he is to be permanently exempted from appearance in the court below. Learned counsel has placed reliance on the decisions in **Helen Rubber Industries and others** v. **State of Kerala and others** [1972 KHC 177], **H.C.Jain** v. Crl.M.C. No.680 of 2011 -: 4 :- **M/s.R.K.Synthetics and Fibres Pvt. Ltd. and another** [1999 CRI. L. J. 2922] and **Rohit.S.Ved** v. **State of Kerala and others** [2008 (4) KLT 671]. All these decisions refer to grant of exemption from personal appearance having regard to the nature of the offence involved. H.C.Jain's case (Supra) was a case where the accused was laid up due to acute illness and hence, not in a position to attend the court. Exercising power under Article 227 of the Constitution of India, the Bombay High Court quashed non bailable warrant issued to that accused. Rohit S. Ved's case (Supra) in paragraph 5 it is pointed out that the purpose of issuing summons/warrant is to secure presence of the accused and that where personal presence of the accused is not necessary for the progress of the case and he can be exempted from personal appearance before the court there can be no reason to ritualistically insist on presence of the accused to facilitate consideration of the application of exemption. In **Raman Nair** v. **State of Kerala** [1999 (3) Crl.M.C. No.680 of 2011 -: 5 :- KLT 714] this Court held that the power to grant permanent exemption can be granted even after issuance of summons. No doubt, the Supreme Court in **T.G.N Kumar** v. **State of Kerala and others** [2011 (1) KHC 142] has stated that the issue regarding grant of permanent exemption being within the discretion of the court concerned is to be considered by that court. But while that court considers that question it has to bear in mind the principles laid down in paragraph 5 of the decision in Rohit S. Ved's case (Supra). 5. I found that situation of the first petitioner is that indulgence of the Court is required. Since he is physically unable to attend the court, it is unjustified to ask him to be physically lifted to the court for the purpose of recalling the warrant, seeking regular bail and permanent exemption. Having regard to the particular situation in which the first petitioner is placed, I am inclined to think that this Court is required to interfere. The non bailable warrant issued against him is liable to be quashed. So far as the Crl.M.C. No.680 of 2011 -: 6 :- permanent exemption is concerned, the court below shall bear in mind that the offence alleged is under Section 498A of the Indian Penal Code and hence no question of dispute of identity of petitioners is involved and in that situation it is not necessary that the first petitioner ought to be present in court on the dates of trial and examination under Section 313 of the Code. To facilitate the 2[nd] petitioner appear in court and seek regular bail, I am inclined to think that the non bailable warrant issued to her has to be kept in abeyance for some time. Resultantly, this Criminal Miscellaneous Case is disposed of in the following line:- - 1.The non bailable warrant issued to the first petitioner/accused 2 is set aside. - 2.First petitioner is permitted to seek permanent exemption from personal appearance through his counsel. - 3.In case petitioners prefer any application for Crl.M.C. No.680 of 2011 -: 7 :- permanent exemption from appearance, learned Chief Judicial Magistrate shall consider the said application having regard to the situation in which petitioners are placed, nature of offence alleged and pass appropriate orders in that behalf. For the said purpose, learned Chief judicial Magistrate shall not insist on physical presence of the first petitioner. - 4.In case permanent exemption is granted petitioners shall file affidavit in the court below stating that the trial could be conducted in their absence, in the presence of their counsel, their examination under Section 313 of the Code shall be conducted as laid down by the Supreme in **Basavaraj R. Patil and others** v. **State of Karnataka and others** [(2000) 8 SCC 740] and that petitioners will not contend that the trial was conducted in their absence. - 5.The non bailable warrant issued to the 2[nd] petitioner/accused 3 will stand in abeyance for a Crl.M.C. No.680 of 2011 -: 8 :- period of three weeks from this day or till she appears in the court below whichever is earlier. If she prefer any application for bail, learned Chief Judicial Magistrate shall consider the application and pass appropriate orders as early as possible. 6.I make it clear that I have not considered, in the absence of any prayer in this case in that regard, the correctness of order impleading petitioners as additional accused in the case. ## **THOMAS P. JOSEPH, JUDGE.** Jvt