Sangeetha Rajan Varghese v. State of Kerala & Bell Chit Funds

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934 Crl.MC.No. 831 of 2013 () -------------------------CC.371/2009 of J.F.M.C.-II, CHERTHALA PETITIONER(S)/ACCUSED: ----------------------------- SANGEETHA RAJAN VARGHESE, D/O RAJAN VARGHESE, VADAKKETHIL MAPPILASSERY HOUSE MUDAVOOR POST, MUVATTUPUZHA TALUK REPRESENTED BY HER POWER OF ATTORNEY HOLDER DR.RAJAN VARGHESE, VADAKKETHIL MAPPILASSERY HOUSE MUDAVOOR POST, MUVATTUPUZHA TALUK. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKKUZHY RESPONDENT/STATE: ----------------------- ## 1.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2.M/S. BELL CHIT FUNDS, MUHAMMA ALAPPAUZHA DISTRICT, REPRESENTED BY ITS PARTNER THOMAS JACOB S/O.P.V.CHACKO R1 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.831/13 APPENDIX PETITIONER'S EXHIBITS: - ANNEXURE A:A TRUE COPY OF THE COM0PLAINT FILED BY THE 2ND RESPONDENT DATED 14.2.2008 BEFORE THE JUDICIAL MAGISTRATE OF IST CLASSII, CHERTHALA. - ANNEXURE B:A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER BEFORE THE JUDICIAL MAGISRATE OF IST CLASS-II, CHERTHALA, DATED 16.1.2010. - ANNEXURE C:A RUE COPY OF THE PROCEEDINGS OF THE JUDICIAL MAGISTRATE OF IST CLASS-II, CHERTHALA. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== CRL.M.C. No. 831 OF 2013 ==========================** Dated this the 12[th] day of March, 2013 ## **ORDER** Petitioner is the accused in C.C.No.371 of 2009 on the files of the Court of Judicial First Class Magistrate-II, Cherthala. The allegation against the petitioner is one of commission offence under section 138 of the Negotiable Instruments Act. Earlier, on summons, the petitioner entered appearance before the aforesaid court through her counsel and filed Annexure-B application under section 205 of the Code of Criminal Procedure to dispense with her personal appearance and to permit her to be represented through her counsel in the proceedings in C.C.No.371 of 2009. Evidently, as per order dated 16.1.2010, the said prayer was allowed. Now, the evidence of the complainant is over and the petitioner is to be examined under section 313 of the Code of Criminal Procedure. The proceedings dated 4.8.2012 would reveal that the case was posted to that date for the **Crl.M.C.831/13** 2 examination of the petitioner under section 313 Cr.P.C. The petitioner was absent on that day. On 18.8.2012, a non-bailable warrant was issued against the petitioner. It is in the said circumstances that this Crl.M.C has been filed with the prayer to direct the learned Magistrate to permit the petitioner to be represented by her Advocate till the conclusion of the trial and also to receive the judgment in C.C.No.371 of 2009 which is now pending before the Court of Judicial First Class Magistrate-II, Cherthala. 2. Though notice was ordered and served on the second respondent, the second respondent has not chosen to enter appearance and resist the prayers of the petitioner. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The very object of the examination of an accused under section 313 Cr.P.C is evident from the very section itself. The avowed purpose is to enable the accused personally to explain the circumstance/circumstances appearing in the evidence against him. In other words, it is essentially to comply with the salutary principles of **Crl.M.C.831/13** 3 natural justice enshrined in the maxim 'audi alteram partem' that this requirement is incorporated in section 313 Cr.P.C. There cannot be any doubt with respect to the position that in appropriate cases and contingencies, the court may relieve the accused from appearing in person for the purpose of examination under section 313 Cr.P.C. Examination of an accused under section 313 Cr.P.C is essentially a matter between the Court and accused and therefore, merely because an exemption is granted under section 205 Cr.P.C, it cannot convey the message that the concerned accused is exempted from personal appearance even during examination under section 313 Cr.P.C. The learned counsel for the petitioner submitted that in this case, Annexure-B application filed under section 205 Cr.P.C carried the specific prayer for exemption of the petitioner during the examination under section 313 Cr.P.C, as well. Since that application was allowed without making any specific order as to whether or not the petitioner was granted exemption even for the purpose of 313 examination, the petitioner was under the bona fide impression that the said order passed under section 205 Cr.P.C would definitely enable her to be represented through her Advocate even during the examination under **Crl.M.C.831/13** 4 section 313 Cr.P.C. The learned counsel further submitted that at any rate, there is no circumstances for issuance of non-bailable warrant against the petitioner considering the fact that earlier, her personal appearance was dispensed with under section 205 Cr.P.C. It is true that Annexure-B is the application filed by the petitioner to dispense with her personal appearance under section 205 Cr.P.C. and proceedings dated 16.1.2010 would reveal that the said application was allowed. It is also evident from Annexure-B that the petitioner had specifically requested for dispensation with her personal appearance even at the time of examination under section 313 Cr.P.C, if any such examination is required. Order dated 16.1.2010 did not specifically make any mention with respect to the fact as to whether such a prayer was allowed or not. In such circumstances, I am of the view that the learned counsel is perfectly justified in making the request for keeping in abeyance the execution of the non-bailable warrant issued against the petitioner. I have already adverted to the very object behind section 313 Cr.P.C. In the decisions in **Inspector of Customs, Akhnoor, J & K v. Yash Pal [(2009) 4 SCC 769]** and **TGN Kumar v. State of Kerala** [ **2011 (1) KLT 362 SC]** , the Hon'ble **Crl.M.C.831/13** 5 Apex Court considered the circumstances justifying dispensation with the personal appearance of an accused for the purpose of section 313 Cr.P.C examination. In a case where an accused has to undertake a tedious, long journey or incur whopping expenditure, the prayer for dispensing with his or her attendance would be justified. In this case, it is submitted by the learned counsel for the petitioner that, presently, the petitioner is employed in Canada and as noticed earlier, her personal appearance was earlier, dispensed with as per order dated 16.1.2010. Taking into account all the aforesaid circumstances, this Crl.M.C is disposed of as hereunder:- The execution of non-bailable warrant issued against the petitioner by the Court of Judicial First Class Magistrate-II, Cherthala in C.C.No.371 of 2009 shall be kept in abeyance for a period of two months. Admittedly, C.C.No.371 of 2009, now, stands posted for the examination of the petitioner/accused under section 313 Cr.P.C and the questions whether the petitioner/accused could be relieved from making her personal appearance for the purpose of section 313 examination and whether her counsel could be permitted to answer are **Crl.M.C.831/13** 6 matters to be considered by that Court. Learned counsel for the petitioner submitted that the petitioner may be permitted to make a proper application specifically seeking such reliefs and also a further prayer to permit the counsel appearing for her to receive judgment, as well. The petitioner may make such an application expeditiously, at any rate, within a period of one month and in case the petitioner makes such a application, the same shall be considered on merits expeditiously and in view of the settled position of law. In view of the attending circumstances, it is also ordered that the Court of Judicial First Class Magistrate-II, Cherthala shall not proceed with C.C.No.371 of 2009 till a decision is taken on such an application or the expiry of period of two months mentioned above, whichever is earlier. Needless to say that further proceedings in C.C.No.371 of 2009 will depend upon such a decision. This petition is disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.M.C.831/13** 7 **C.T. RAVIKUMAR, J.** **Crl.M.C.831/13** 8 **JUDGMENT September, 2010**