Crl.M.C. Nos.6973 & 6981 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945`** ## **`CRL.MC NO. 6973 OF 2023 CC 110/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA`** ## **`PETITIONERS/PETITIONERS/ACCUSED 1 & 5:`** ``` 1STANLYSIMON,AGED37YEARS,S/OSIMONC.THOMAS, ASSANPARAMBILHOUSE,PAZHAMPALAKKADMURI, PAZHAMPALAKKADVILLAGE,THAROOR-1,ALATHOORTALUK, - PALAKKADUDISTRICT.,PIN678544 ``` ``` 2ZEENATHSTANLY,AGED42YEARS,W/OSTANLYSIMON, ASSANPARAMBILHOUSE,PAZHAMPALAKKADMURI, PAZHAMPALAKKADVILLAGE,THAROOR-1,ALATHOORTALUK, - PALAKKADUDISTRICT.,PIN678544 ``` ``` BYADVK.N.RADHAKRISHNAN(THIRUVALLA) ``` ## **`RESPONDENT/STATE:`** ``` STATEOFKERALA,REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,ERNAKULAM,PIN682031 ``` ``` SRI.VIPINNARAYAN,SR.PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 25.08.2023ALONGWITHCRL.M.CNO.6981OF2023,THECOURTON THESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C. Nos.6973 & 6981 of 2023 2 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV FRIDAY,THE25[TH]DAYOFAUGUST2023/3RDBHADRA,1945 ``` ## **`CRL.MC NO. 6981 OF 2023 CC 130/2012 OF CHIEF JUDICIAL MAGISTRATE PATHANAMTHITTA`** ## **`PETITIONERS/PETITIONERS/ACCUSED 1 & 5:`** ``` 1STANLYSIMON,AGED37YEARS,S/OSIMONC.THOMAS, ASSANPARAMBILHOUSE,PAZHAMPALAKKADMURI, PAZHAMPALAKKADVILLAGE,THAROOR-1,ALATHOORTALUK, - PALAKKADUDISTRICT.,PIN678544 ``` ``` 2ZEENATHSTANLY,AGED42YEARS,W/OSTANLYSIMON, ASSANPARAMBILHOUSE,PAZHAMPALAKKADMURI, PAZHAMPALAKKADVILLAGE,THAROOR-1,ALATHOORTALUK, PALAKKADUDISTRICT.PIN-678544. ``` ``` BYADVK.N.RADHAKRISHNAN(THIRUVALLA) ``` ## **`RESPONDENT/STATE:`** ``` STATEOFKERALA,REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031 ``` ``` SRI.VIPINNARAYAN,SR.PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 25.08.2023ALONGWITHCRL.M.CNO.6973OF2023,THECOURTON THESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C. Nos.6973 & 6981 of 2023 3 ## **ORDER** The petitioners herein are husband and wife, respectively. They have been arrayed as accused in C.C. No.110/2012 and 130/2012 on the file of the Chief Judicial Magistrate Court, Pathanamthitta. In the above case, they face indictment for having committed an offence punishable under Section 420 r/w Section 34 of the IPC. 2. Sri. K.N. Radhakrishnan, the learned counsel appearing for the petitioners, submitted that the petitioners, on receipt of the summons, had appeared before the learned Magistrate and were enlarged on bail. While the trial proceedings were pending, the 1st accused was diagnosed with cancer. Immediately thereafter, the petitioners herein filed separate applications under Section 205 of the Cr.P.C. seeking exemption from appearance in the Court and also to permit them to be represented through a lawyer. By the orders impugned in this petition, the trial court rejected the applications. Those orders are under challenge in this petition. 3. I have heard Sri.K.N.Radhakrishnan, the learned counsel appearing for the petitioners, who submitted that the learned Single Judge of this Court in Crl.M.C. No.1684 of 2023 and connected cases had considered Crl.M.C. Nos.6973 & 6981 of 2023 4 the entire facts and had passed a common order dated 13.03.2023. The said order has been followed by a coordinate Bench in Crl.M.C.Nos.2951 of 2023 and 2045 of 2023. According to the learned counsel, in that view of the matter, the directions issued by this Court may govern this matter as well. 4. Heard the learned public prosecutor. 5. I have considered the submissions advanced. 6. I find that a learned single judge of this Court has considered identical issues while disposing of Crl.M.C.No.1874 of 2023 and connected cases. This Court, after taking note of the law laid down in **Bhanujan v. Jayabhanu** [1993 (2) KLT 889], **M/s. Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Others** [AIR 2001 SC 3625], **Sarath v. State of Kerala** [2017 (3) KLT 95] and **Moosa Pattupura v. State of Kerala** [2022 (2) KHC 293] had occasion to hold that that Section 317(1) Cr.P.C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and proceed with the trial in his absence. This Court further observed that ordinarily, the Court should be generous and liberal under Section 205 and Section 317 of Cr.P.C. and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable. The same view was taken by this Court in Crl.M.C. Nos.6973 & 6981 of 2023 5 Crl.M.C. No.2951 of 2023 as well. In that view of the matter, following the directions issued by this Court in Crl.M.C.Nos.1684 of 2023 and Crl.M.C. No.2951 of 2023, these petitions are allowed by ordering as under. - a) The order dated 12.1.2023 in Crl.M.P. No.439/2023 in C.C.No.110/2012 and order dated 02.02.2023 in Crl.M.P. No.616/2023 in C.C.No.130/2012 on the files of the Chief Judicial Magistrate Court, Pathanamthitta are set aside. - b) The petitioners are granted permanent exemption from appearance under Section 205(1) of the Cr.P.C and shall be represented by their Counsel at the time of trial. - c) The petitioners shall file affidavits in tune with the directions in ## **M/s.Bhaskar Industries Limited** (supra). - d) Petitioners shall appear before the Court at the time of questioning under Section 313 Cr.P.C as well as on the date of judgment, and the exemption granted as above shall not be applicable in view of the undertaken given by the petitioner. It is made clear that Subsection 205(2) shall always apply, and if the presence of the petitioners is otherwise required, it would be open to the Magistrate to insist on their appearance, however, subject Crl.M.C. Nos.6973 & 6981 of 2023 6 to the orders above. e) It is reiterated that the exemption granted as above shall be subject to a further direction that the petitioners shall appear if they are so otherwise directed by the court tying the matter. These Crl.M.Cs are disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C. Nos.6973 & 6981 of 2023 7 ## **`APPENDIX OF CRL.MC 6973/2023`** ``` PETITIONERS’ANNEXURES: ``` ``` Annexure1THECOPYOFFINALREPORTINC.C110/2012ON THEFILEOFCHIEFJUDICIALMAGISTRATE COURT,PATHANAMTHITTADATED10.07.2012 ``` ``` Annexure2THECOPYOFMEDICALCERTIFICATEDATED 30.09.2020ISSUEDFROMTHEAMRUTHA INSTITUTEOFMEDICALSCIENCE,ERNAKULAM ``` ``` Annexure3THECOPYOFMEDICALCERTIFICATEDATED 07.02.2023ISSUEDFROMTHEAMRUTHA INSTITUTEOFMEDICALSCIENCE,ERNAKULAM ``` ``` Annexure4THECERTIFIEDCOPYOFORDERINCRL.MPNO. 458/2023INCC110/2012DATED10.02.2023 ``` ``` Annexure5THECERTIFIEDCOPYOFORDERINCRL.MPNO. 459/2023INCC110/2012DATED10.02.2023 ``` Crl.M.C. Nos.6973 & 6981 of 2023 8 ## **`APPENDIX OF CRL.MC 6981/2023`** ``` PETITIONERS’ANNEXURES: ``` ``` Annexure1 ``` ``` THECOPYOFFINALREPORTINC.C130/2012ON THEFILEOFCHIEFJUDICIALMAGISTRATE COURT,PATHANAMTHITTADATED10.08.2012 ``` ``` Annexure2THECOPYOFMEDICALCERTIFICATEDATED 30.09.2020ISSUEDFROMTHEAMRUTHA INSTITUTEOFMEDICALSCIENCE,ERNAKULAM ``` ``` Annexure3THECOPYOFMEDICALCERTIFICATEDATED 07.02.2023ISSUEDFROMTHEAMRUTHA INSTITUTEOFMEDICALSCIENCE,ERNAKULAM ``` ``` Annexure4THECERTIFIEDCOPYOFORDERINCRL.MPNO. 617/2023INCC130/2012DATED02.02.2023 ``` ``` Annexure5THECERTIFIEDCOPYOFORDERINCRL.MPNO. 616/2023INCC130/2012DATED02.02.2023 ```