Sarath S v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939** ## **Crl.MC.No. 1654 of 2017 ()** **---------------------------** **(AGAINST ORDER IN CMP NO.6723/2016 IN CC NO.305/2016 OF JFCMII,MAVELIKARA ARISING FROM CRIME NO.169/2016 OF NOORANAD POLICE STATION)** **PETITIONER(S)/1ST ACCUSED:** **-------------------------** **SARATH S, AGED 26 YEARS, S/O. SASIDHARAN PILLAI, SASI BHAVANAM, ULAVAKKADU MURI, PALAMEL VILLAGE, MAVELIKARA TALUK, NOW WORKING AT LAHEJ & SULTAN GAS DISTRIBUTORS(L.L.C) DUBAI NEAR G P O KARAMA, PO BOX 52070, DUBAI UNITES ARAB EMIRATES.** **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **R BY PUBLIC PROSECUTOR SRI.T.R.RANJITH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 1703-2017, THE COURT ON 12/4/2017 PASSED THE FOLLOWING:** **Crl.MC.No. 1654 of 2017 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE A1 A TRUE COPY OF THE PETITION FILED UNDER SECTION 205 OF CR.P.C. AS C.M.P NO. 6723/2016 ACCOMPANIED BY THE PETITIONER'S AFFIDAVIT.** **ANNEXURE A2 A TRUE COPY OF THE ORDER DATED 16/12/2016 PASSED BY THE JFCM COURT -II MAVELIKKARA IN C.M.P NO.6723/16 IN CC 305/16** **ANNEXURE A3 A TRUE COPY OF THE FINAL REPORT IN CRIME NO.169/2016 OF NOORANAD POLICE STATION.** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **CR** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.1654 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of April , 2017 ## **O R D E R** The petitioner herein is the first accused in CC No.305/2016 of JFCM-II, Mavelikara, charge sheeted for offences punishable under sections 323,324,326,341,427 read with section 34 IPC. 2. According to the petitioner, he was employed abroad at Sharja and only occasionally he would be granted leave by his employer. He became aware of his involvement in the case, when warrant was attempted to be served at his home address. On enquiry, it was revealed that without proper investigation, the case was charge sheeted and that, summons issued from the court below was not duly served on him. Only after the non-bailable warrant was issued, the petitioner came to know about the case through the family members. Since it was difficult for the petitioner herein to obtain leave, counsel was engaged to appear before the court below and to seek exemption from personal appearance, invoking section 205 Cr.P.C. An application was accordingly filed by the counsel for the petitioner supported by an affidavit of the petitioner herein duly attested before the concerned Embassay official, inter alia, undertaking that, if he is Crl.M.C.No.1654/2017 2 exempted, he will not dispute his identity. The court below rejected that application on the sole reason that warrant has already been issued and was pending. 3. Aggrieved by the above order, the first accused has approached this Court invoking Section 482 of Cr.P.C,seeking appropriate reliefs. 4. Heard both sides and examined the records. 5. The learned counsel for the petitioner contended that, the court below, without properly evaluating the scope and ambit of section 205 Cr.P.C. dismissed the application, on a faulty reasoning that non bailable warrant had already been issued. According to the petitioner herein, the court below ought to have considered the background in which the non-bailable warrant was issued, that it was not practically possible for the petitioner herein to appear before the court below at that point of time and in the above circumstance, the personal appearance of the accused ought to have been exempted. 6. Learned counsel for the petitioner relied on various decisions to contend that the reliefs under sections 205 and 317 Cr.P.C. should be reasonably and liberally invoked, unless it was found that presence of accused was absolutely essential for the further progress of trial. ## 7. In **Bhaskar Industries Ltd. v. Bhiwani Denim And** **Apparels Ltd.(2001 SC 3625),** the Hon'ble Supreme Court held Crl.M.C.No.1654/2017 3 that, under section 317 Cr.P.C., the Magistrate was empowered to dispense the personal presence of the accused in appropriate cases. It was held that if the progress of the trial can be achieved even in the absence of accused, the court can certainly take into account the magnitude of suffering which the accused person may have to bear to make himself present in the court. It was further held that Magistrate, exercising his judicial discretion, is competent to dispense the personal appearance of an accused, either through out or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. ## 8. In **Alice George v. Deputy Superintendent of Police** **(2003 KHC 51)** ,this Court referring to sections 256,273,205,317Cr.P.C held that, it was unreasonable and irrational to insist for personal presence of the accused and the complainant on all dates of posting, irrespective of the nature and purpose. The court, after an elaborate consideration of legal principles involved, held that, Section 317 Cr.P.C should be liberally invoked in appropriate cases. 9. The above decisions lay down the principle that in appropriate cases, personal appearance of accused can be dispensed with. However, the crucial question that arises in this case is whether after issuance of the warrant, the trial court will Crl.M.C.No.1654/2017 4 be justified in exempting the personal appearance invoking section 205 Cr.P.C. The contention of the learned Public Prosecutor was that, the issuance of warrant pre-supposes that the service of summons was not effective and implies the evading of service by the accused. It was contended that it is to be presumed that in case of service of summons attempted under section 62 of Cr.P.C., followed by issuance of warrant, it pre supposes the evading of service of summons. In the above circumstances, it was contended that granting of leave invoking section 205 Cr.P.C.would run contrary to the spirit of issuing non bailable warrant for ensuring the presence of the accused. On the other hand, learned counsel for the petitioner contended that the power to dispense with personal appearance can be exercised not only in cases in which Magistrate has issued summons, but also in cases where warrants have been issued. ## 10. Orissa High Court in **Debasis Samantarary v State of** **Orissa (2003 KHC 2763),** held that, the trial court was labouring under the erroneous impression that before considering the application under section 205 Cr.P.C,personal appearance of the accused in Court was very much necessary. It was held that the conclusion of the trial court that non bailable warrant having been issued, there was no scope for invoking jurisdiction under sections 205(1), 273 and section 317 Cr.P.C. was not tenable. A conjoint reading of sections 205 (1), 273 and section 317 Cr.P.C. lead to a 5 Crl.M.C.No.1654/2017 conclusion that merely on the premise of issuance of non bailable warrant, an application under Section 205 Cr.P.C. cannot be rejected. Orissa High Court virtually followed its earlier decision in **Santanu v. State [1999 (17) OCR 239]** wherein it was held that though power under section 205(1) Cr.P.C.is expected to be exercised at the stage of issuing summons, there is no bar for invoking such power at a subsequent stage. This was apparent by reading section 205 (1) together with sections 273 and 317 Cr.P.C., it was held. 11. Patna High Court in **Ram Harsh Das v. State of Bihar (1998 (1) PLJR 502)** had considered exhaustively the legal provision and the circumstances for invoking sections 205 Cr.P.C. The Division Bench specifically dealt with the question whether the personal appearance can be dispensed with in case where the warrant has been issued in the first instance. In **Abdul Hamid v.** **King Emperor (AIR 1924 Pat 40),** it was earlier held by the Division Bench of Patna High Court that section 205 applies only to a case in which Magistrate has issued a summons in first instance and does not apply to a case where the accused has been arrested without or after the issuance of warrant. After exhaustive consideration of the issue, the Division Bench in Ram Harsh Das's case concluded that, once the Magistrate has issued a warrant at the first instance in a warrant case, the power under section 205 of the Code cannot be exercised. However,even in such cases, High 6 Crl.M.C.No.1654/2017 court may dispense with the personal appearance in exercise of power under section 482 Cr.P.C. if a proper case is made out to meet ends of justice. Regarding the powers of Magistrate, the Bench proceeded to hold that power under section 205 (1) Cr.P.C. was discretionary. It held that even where the provision is applicable, the Magistrate has to consider the question of dispensing with the personal appearance in a reasonable manner. It was held that, though no hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer for dispensing with the personal appearance,the court should be liberal in granting exemption in petty cases. 12. In **Manish Gai v. State of Bihar (2007 KHC 6243)** , it was held that if summons was issued at first instance and subsequently warrant of arrest was issued, even in such a situation, benefit of section 205 was available. It was reiterated that,application under section 205 Cr.P.C.does not end by issuance of warrant, if at first instance summons was issued. 13. Section 205 Cr.P.C. confers a discretion on the court to exempt accused from personal appearance till such time his personal appearance was essential for the further progress of the case. Section 317 Cr.P.C. empowers the court to grant leave to an accused,when on a particular day, the accused who is reqired to be present in person, is unable to appear. Section 205 Cr.P.C. operates at the initial stage itself, whereas section 317 Cr.P.C. Crl.M.C.No.1654/2017 7 applies to every stage of inquiry or trial. However, it does not enable the accused to perpetually remain absent and the court can insist for his appearance, when his presence is found essential for the further progress. However, in content and its operation, both the provisions are different and distinct. 14. Having considered the law laid down by the Patna and Orissa High Courts, as mentioned above, I feel that they refer to the correct exposition of law. It is clear that in case wherein the summons was issued in the first instance, followed by an issuance of non bailable warrant, pendency of warrant cannot be the ground for refusing the request under section 205 Cr.P.C.,if appropriate grounds are made out. In the case at hand also, the petitioner has specific case that summons was not served on him. He was working abroad and was unable to obtain leave. In the light of the above, I feel that the court below was not justified in refusing to invoke the powers under section 205 Cr.P.C. Consequently, the impugned order is liable to be set aside. In the result, the Crl.M.C. is allowed. The impugned order is set aside and the CMP No.6723/2016 stands allowed. The petitioner herein will stand exempted from his personal appearance and will be permitted to appear through the counsel till such time as fixed by the court below. It will be subject to the condition that he shall, on all posting dates, appear through the counsel and that, all proceedings taken by the court in his absence will be binding on Crl.M.C.No.1654/2017 8 him and he will not be entitled to challenge it on the mere ground of absence of the petitioner herein alone. Further he shall not raise any objection regarding the identity. However,the court below will be competent to insist for his personal appearance at any stage, whenever the court feels it essential for the further progress of proceedings. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.1654/2017 9