High Court of KeralaSingle Judge2024-02-05Transfer Petition disposed of; NBW set aside; p...

Cliya Dalvin v. Shamim Hassan P.T and State of Kerala (Transfer Petition under Cr.P.C.)

Case / Petition Number:Tr.P(Crl).No.17 of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Babu
Judgment Date: 2024-02-05
Court Decision / Holding: The Transfer Petition (Criminal) is disposed of with directions: (i) The non-bailable warrant issued against the petitioner is set aside; (ii) the petitioner is granted permanent exemption from appearance under Section 205(1) Cr.P.C. and may be represented by counsel at the time of trial; (iii) the petitioner shall file an affidavit undertaking that a counsel on her behalf will be present and that the presence of the counsel will be treated as her presence; (iv) if the petitioner seeks protection on ground of genuine threat, the Superintendent of Police, Malappuram shall arrange protection; (v) the petitioner may move an application for transfer in future, if advisable.
Final Disposition: Transfer Petition disposed of; NBW set aside; permanent exemption from appearance under Section 205(1) Cr.P.C; counsel to appear on petitioner’s behalf; affidavit to confirm counsel’s presence; protection if genuine threat; right to pursue future transfer if needed.

Parties to the Case

Appellants / Petitioners

Cliya Dalvin

Respondents

Shamim Hassan P.T.
State of Kerala represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Manu Ramachandran
• R. Rajesh (Varkala)
• M. Kiranlal
• Sameer M Nair
• Sailakshmi Menon
• Jothisha K.A.
• Shifana M.

Counsels for Respondents

• G. Sudheer

Case Synopsis & Summary

Cliya Dalvin, the petitioner, is the accused in S.T No.1263/2022 before the Judicial First Class Magistrate Court-I, Perinthalmanna, for an offence under Section 138 of the Negotiable Instruments Act. She seeks transfer of the case to the Judicial First Class Magistrate Court, Adoor, citing threats from the complainant and his men, which allegedly prevented her from appearing in court and compelled the non-bailable warrant. She contends that personal appearance is unduly burdensome given safety concerns and that a counsel may adequately represent her, with her own presence treated as her presence under Section 317 Cr.P.C. The petitioner relies on rulings that permit dispensation of personal appearance: Bhanujan v. Jayabhanu, which recognizes magistrates' discretion to dispense with appearance; M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd., which permits permanent exemption upon conditions; Sarath v. State of Kerala, holding that NBW pendency should not defeat relief under Section 205; and Moosa Pattupura v. State of Kerala, endorsing liberal application of Sections 205 and 317. The court finds the petitioner’s circumstances do not necessitate her personal presence and accordingly disposes of the transfer petition by (i) setting aside the NBW; (ii) granting permanent exemption under Section 205(1) Cr.P.C.; (iii) directing filing of an affidavit; (iv) offering protection if genuine threats exist; (v) allowing future transfer requests.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Cr.P.C., Section 205(1)Cr.P.C., Section 317(1)

Legal Doctrines & Maxims

Magistrate's discretion to dispense with personal appearance under Section 205 Cr.P.C. (Bhanujan v. Jayabhanu)
Permanent exemption from appearance under Section 205(1) Cr.P.C. (M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others)
Pendency of NBW cannot be a ground to deny relief under Section 205 Cr.P.C. (Sarath v. State of Kerala)
Section 317(1) Cr.P.C. empowering dispensation of personal attendance and liberal approach under 205 and 317 (Moosa Pattupura v. State of Kerala)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that due to threats from the complainant and his men, she faces danger; non-appearance has occurred; the presence in court is not imperative for the trial; under Section 205 Cr.P.C., permanent exemption from appearance can be granted if identity is not disputed and counsel is present; that the presence of the counsel should be treated as the petitioner’s presence under Cr.P.C.; she relies on Bhanujan v. Jayabhanu and subsequent authorities to justify liberal exemptions, and is prepared to have counsel represent her at trial; she seeks transfer to a more secure court and protection if threats persist.

Contentions of Respondents

The document does not record a detailed argument from the respondents. The order centers on the petitioner’s submissions and the court’s reliance on established Cr.P.C. provisions and case-law. The respondents’ position, if any, is not elaborated in the order.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Bhanujan v. Jayabhanu	1993 (2) KLT 889	Positive	Cited to support magistrate’s discretion to dispense with personal appearance and permit representation by counsel under Section 205 Cr.P.C.
M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others	AIR 2001 SC 3625	Positive	Held that Section 205(1) permits permanent exemption from appearance under conditions.
Sarath v. State of Kerala	2017 (3) KLT 95	Positive	Pendency of NBW cannot be a ground to refuse relief under Section 205 Cr.P.C.
Moosa Pattupura v. State of Kerala	2022 (2) KHC 293	Positive	Section 317(1) empowers dispensation of personal attendance; liberal approach to 205 and 317.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 TR.P(CRL.) NO. 17 OF 2024** **ST 1263/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **PERINTHALMANNA** ## **PETITIONER/ACCUSED:** CLIYA DALVIN, AGED 40 YEARS, W/O DALVIN THOMAS, KURISHINGAL HOUSE, EDAKKATHODU ROAD, PAZHAMPALLY, KONNAMMAVU, ERNAKULAM DISTRICT, PIN - 683518 BY ADVS. MANU RAMACHANDRAN R.RAJESH (VARKALA) M.KIRANLAL SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. ## **RESPONDENTS/COMPLAINANT & STATE:** 1 SHAMIM HASSAN P.T, AGED 44 YEARS, S/O HASSAN, POTHIYIL THOTTIPARAMBIL HOUSE, PONNIYAMKURISHI P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679322 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Tr.P(Crl).No.17 of 2024 2 K.BABU, J . -------------------------------------Tr.P (Crl).No.17 of 2024 --------------------------------------Dated this the 5[th] day of February, 2024 ## O R D E R The petitioner is the accused in S.T No.1263/2022 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna. She is alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner seeks transfer of the case from the Judicial First Class Magistrate Court-I, Perinthalmanna to the Judicial First Class Magistrate Court, Adoor. 2. The petitioner alleges that she faces threat from the complainant and his men. It is submitted that the Trial Court has issued non-bailable warrant against the petitioner due to her nonappearance. It is submitted that she failed to appear before the Court because of the fact that she faced threat from the complainant. So, she finds it difficult to go and engage a lawyer. 3. The learned counsel for the petitioner submitted that the presence of the petitioner during the course of trial is not at all Tr.P(Crl).No.17 of 2024 3 required in view of the nature of the offence alleged against her. It is submitted that the petitioner is prepared to undertake that a counsel on her behalf would be present in the Court and that she has no objection in taking the evidence in her absence treating the presence of the counsel as her presence in compliance with Section 317 of the Cr.P.C. 4. In Bhanujan v. Jayabhanu [1993 (2) KLT 889] , this Court while dealing with the scope of Section 205 Cr.P.C. held that the Magistrate has discretion to dispense with personal appearance of the accused in Court. It was further held that in appropriate cases the Court can, on conditions, allow the accused not to appear in person and permit him to be represented through a counsel. 5. In M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others [AIR 2001 SC 3625] , the Apex Court held that Section 205(1) of Cr.P.C. permits the Magistrate to enable an accused to get permanent exemption from appearance on the following conditions: - (1) accused shall undertake that he would not dispute his identity as the particular Tr.P(Crl).No.17 of 2024 4 accused in the case. - (2) he should undertake, that the counsel in his behalf should be present in Court. - (3) that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence. 6. This Court in Sarath v. State of Kerala [2017 (3) KLT 95] held that pendency of non-bailable warrant cannot be a ground for refusing the request under Section 205 of Cr.P.C. 7. This Court in Moosa Pattupura v. State of Kerala [2022 (2) KHC 293] held that Section 317(1) Cr.P.C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and proceed with trial in his absence. This Court further observed that ordinarily the Court should be generous and liberal under Sections 205 and 317 of Cr.P.C. and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable. 8. Having regard to the facts of this case, I am of the view that it is not imperative for the Court to insist the presence of the Tr.P(Crl).No.17 of 2024 5 petitioner during the course of trial. Therefore, the Transfer Petition (Criminal) is disposed of as follows: - (i) The non-bailable warrant issued against the petitioner is set aside. - (ii) The petitioner is granted permanent exemption from appearance under Section 205 (1) of Cr.PC - and to represent her by his counsel at the time of trial. - (iii) The petitioner shall file an affidavit undertaking that a counsel on her behalf will be present in the Court and that she has no objection in taking - the evidence in her absence treating the presence of the counsel as her presence. - (iv) If the petitioner makes any request seeking protection on the ground of genuine threat on the part of the complainant, the Superintendent of Police, Malappuram shall make arrangements to give necessary protection to the petitioner. Tr.P(Crl).No.17 of 2024 6 - (v) The petitioner is at liberty to move an application seeking transfer of the case in future, if she is advised so. Sd/K.BABU, JUDGE KAS Tr.P(Crl).No.17 of 2024 7 ## **APPENDIX OF TR.P(CRL.) 17/2024** ## PETITIONER ANNEXURES |Annexure A1|THE TRUE COPY OF THE COMPLAINT IN S.T| |---|---| ||NO.1263/2022 ON THE FILES OF JFMC-I,| ||PERINTHALMANNA| |Annexure A1(a)|THE COPY OF THE CERTIFIED COPY OF CHEQUE| ||VIDE NO.509721 DATED 26.10.2022 DRAWN ON| ||ACCOUNT NO.3539101000429 OF CANARA BANK,| ||ERNAKULAM BRANCH FOR AN AMOUNT OF| ||RS.9,45,000/-| |Annexure A2|THE TRUE COPY OF THE NOTICE DATED| ||17.10.2022 ISSUED THROUGH THE LAWYER BY| ||THE PETITIONER TO MR. ANEEZ VAHAB| |Annexure A3|THE TRUE COPY OF THE COMPLAINT DATED| ||18.10.2022 PREFERRED BY THE PETITIONER| ||TO THE STATION HOUSE OFFICER,| ||BINANIPURAM POLICE STATION, ERNAKULAM| ||DISTRICT| |Annexure A3(a)|THE TRUE COPY OF THE COMPLAINT DATED| ||18.10.2022 PREFERRED BY THE PETITIONER| ||TO THE CITY POLICE COMMISSIONER, KOCHI| |Annexure A3(b)|THE TRUE COPY OF THE COMPLAINT DATED| ||18.10.2022 PREFERRED BY THE PETITIONER| ||TO THE DIRECTOR GENERAL OF POLICE| |Annexure A3(c)|THE TRUE COPY OF THE COMPLAINT DATED| ||18.10.2022 PREFERRED BY THE PETITIONER| ||TO THE CHIEF MINISTER OF KERALA| |Annexure A4|THE TRUE COPY OF THE POSTAL RECEIPTS| ||DATED 18.10.2022 OF SENDING ANN.A3(a) TO| ||ANN.A3(c) COMPLAINTS| |Annexure A5|THE TRUE SCREENSHOTS OF THE CHEQUES AND| ||MESSAGES OF MR. ANEEZ VAHAB TO THE| ||WHATSAPP OF THE PETITIONER| |Annexure A6|THE TRUE COPY OF THE JUDGMENT DATED| ||23.02.2023 IN W.P(C) NO.34129/2022 OF| ||THIS HON'BLE COURT| |Annexure A7|THE TRUE COPY OF THE JOINT COMPLAINT| ||DATED 21.11.2023 SUBMITTED BY THE| ||PETITIONER AND HIS FRIEND MR.SUJITH| ||SIMON BEFORE THE STATION HOUSE OFFICER,| ||ADOOR ALONG WITH RECEIPT VIDE| ||NO.15299005-2023-5-01421 DATED| ||22.11.2023| 8 ## Tr.P(Crl).No.17 of 2024 Annexure A7(a) THE TRUE COPY OF THE JOINT COMPLAINT DATED 30.11.2023 SUBMITTED BY THE PETITIONER AND HIS FRIEND MR.SUJITH SIMON BEFORE THE DISTRICT POLICE CHIEF, PATHANAMTHITTA ALONG WITH RECEIPT VIDE NO.2870/CAMP/DPC/PTA/2023 DATED 30.11.2023