Sonu Mon S.R v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943 CRL.MC NO. 2627 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CC 485/2017 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF MARADU CASES, KOZHIKODE, KOZHIKODE** ## **PETITIONER/S:** SONU MON S.R AGED 30 YEARS S/O.SUNIL KUMAR, THITTAYIKULAM (H), VAKKOM P.O., CHIRAYINKEZHU, THIRUVANANTHAPURAM DISTRICT 695 308 BY ADV P.ANOOP (MULAVANA) (K/1037/2005)-10922 ## **RESPONDENT/S:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. ## **OTHER PRESENT:** SR.PP. SRI.C.S. HRITWIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON 15.07.2021 DELIVERED THE FOLLOWING: _CRL.MC NO. 2627 OF 2021_ 2 ## **O R D E R** Petition filed under Section 482 of the Cr.P.C. 2. The petitioner is the sole accused in C.C.No.485/2017 on the files of the Special Judicial First Class Magistrate Court (Marad Cases) Kozhikode, alleging offences punishable under Sections 279, 337 and 338 of the I.P.C. He was enlarged on bail and then granted exemption from personal appearance to go abroad for employment. The petitioner is presently in Singapore and has been appearing through Counsel for the trial. He intends to apply for permanent residence in Singapore. Due to the pandemic situation, he is not able to travel to India. He wants to plead guilty through his Counsel. The petitioner filed C.M.P.No.402/2021 at Annexure 1 before the jurisdictional Magistrate seeking permission to plead guilty through Counsel. The learned Magistrate, however, dismissed the application vide Annexure 2 Order stating that his presence in person is essential while receiving the sentence on a _CRL.MC NO. 2627 OF 2021_ 3 plea of guilty. Aggrieved by that Order, the petitioner is before this Court seeking to quash the impugned Order. 3. The petitioner states that he had appeared before the trial Court and pleaded not guilty. Subsequently, he was granted a permanent exemption under Section 205 of the Cr.P.C. and permitted to appear through his Counsel. He went to Singapore and got employed. For the last three years, his Counsel has been representing him. It is contended that the dismissal of the petitioner's request to record his plea again and permit him to plead guilty to his Counsel, is not proper. Hence, it is prayed that the Annexure-2 Order may be quashed, and the learned Magistrate may be directed to record the plea of the accused once again, to enable him to plead guilty through his Counsel. 4. Heard the learned Counsel Shri P.Anoop appearing for the petitioner and the learned Public Prosecutor for the State. 5. The learned Counsel for the petitioner submits that the petitioner has been exempted from personal _CRL.MC NO. 2627 OF 2021_ 4 appearance under Section 205(1) of the Cr.P.C and is being represented by his Counsel. The learned Counsel relies on the decision of the Hon'ble Supreme Court in _**M/s. Bhaskar**_ _**Industries Ltd vs. M/s. Bhiwani Denim and Apparels Ltd and others, AIR 2001 (3) SCC 3625**_ to argue that the accused undertakes that he would not dispute his identity and has no objection in taking the evidence in his absence. Treating the presence of the Counsel as his presence, in compliance with Section 317 of the Cr.P.C., there is no reason why his presence should be insisted. Relying on the decision of the Kerala High Court in _**Noorjahan vs. Moideen,**_ _**2000 (2) KLT 756**_ , he argues that the Court has the discretionary power to accept personal appearance of the accused, even in warrant cases and to have the plea of the Council recorded for and on behalf of the accused, when he is specifically authorised for the purpose and in appropriate cases. If, after considering all the aspects of the case, Court holds that the personal attendance of the accused is not essential, the Court can dispense with _CRL.MC NO. 2627 OF 2021_ 5 the personal attendance of the accused and the plea of the counsel can be recorded and based on such plea, the Court can either convict the accused or proceed to have the trial. The learned Counsel also points to another decision of the Kerala High Court in _**Raju T.P vs. State of Kerala, 2009 (3) KHC 14**_ to submit that Section 205(1) of the Cr.P.C. provides that whenever a Magistrate issues a summons, he may, if he sees reason to do so, dispense with personal attendance of the accused and permit him to appear by his pleader. Sub-section (2) of Section 205, Cr.P.C. enables the Magistrate at any stage of the proceedings to direct the personal attendance of the accused, if necessary, despite the permission granted under sub-section (1). It is submitted that the discretion of the Magistrate in this regard is to be exercised considering not only the convenience of the prosecution, but also the difficulties expressed by the accused. Considering the present pandemic situation, the petitioner who is in Singapore is not in a position to appear for trial before the Magistrate and has, 6 _CRL.MC NO. 2627 OF 2021_ therefore, sought for early disposal of the case by pleading guilty through his pleader. The learned Magistrate was not justified in dismissing the request made by the petitioner. 6. The learned Public Prosecutor submits that the accusations against the petitioner in the instant case are for offences punishable under Sections 279, 337 and 338 of the I.P.C. Imprisonment is provided as punishment for the offences, and it is the discretion of the Magistrate to decide whether imprisonment is to be awarded as a punishment to the petitioner. In case the Magistrate decides to award a punishment of imprisonment, the presence of the petitioner becomes essential. Moreover, the petitioner cannot insist on recording his plea again in this case, when he has already pleaded not guilty and the Magistrate has decided to proceed with the trial against him. Hence, the Magistrate had rightly dismissed the prayer to record the plea of the petitioner again in his absence. Once the plea is recorded, and the petitioner _CRL.MC NO. 2627 OF 2021_ 7 appearing in person has pleaded not guilty, the petitioner can plead guilty to the accusations only at this stage of being questioned under Section 313 of the Cr.P.C. and not before that. It is, therefore, submitted that the Crl.M.C. may be dismissed. 7. In _**M/s. Bhaskar Industries Ltd (** Supra_ _**)**_ the Apex Court has held thus: _"18. A question could legitimately be asked - what might happen if the Counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the Counsel does not cooperate in proceeding with the case? We may point out that the Legislature has taken care of such eventualities. S.205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of S.317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance._ _19. The position, therefore, bogs down to this: It is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the_ _CRL.MC NO. 2627 OF 2021_ 8 _Magistrate finds that insistence of his presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need to be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised Counsel praying for affording the benefit of his presence being dispensed with, the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."_ 8. In the instant case, the learned Magistrate had after recording the plea of the petitioner, allowed his exemption from personal appearance under Section 205 of the Cr.P.C. I am sure that the Court may also not insist on his appearance during the trial. Subsequent exemption of the accused is to be under Section 317 of the Cr.P.C. In _**Chandu Lal Chandraker v. Puran Mal and Another. 2008 KHC**_ _CRL.MC NO. 2627 OF 2021_ 9 _**6507 : AIR 1988 SC 2163**_ , the Hon'ble Supreme Court had allowed the accused, whose personal appearance was exempted under Section 205 of the Cr.P.C., to appear through his Counsel for answering the questions under Section 313 of the Cr.P.C. as well. In _**Noorjahan**_ ( _Supra_ ), this Court held that the trial court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea of the Counsel recorded for and on behalf of the accused, when he is specifically authorised for the purpose and in appropriate cases. If after considering all the aspects of the case, the Court holds that the personal attendance of the accused is not essential, the Court can dispense with the personal attendance of the accused and the plea of the counsel can be recorded and based on such plea, the Court can either convict the accused or proceed to have the trial. Even in _**Raju.T.P**_ ( _Supra_ ), this Court has held that granting exemption to the accused for recording the plea through the Counsel is discretionary. In _**Rameshwar Yadav and Others v.**_ _CRL.MC NO. 2627 OF 2021_ 10 ## _**State of Bihar and Another, 2018 KHC 6191: AIR 2018 SC 1435**_ it was held by the Apex Court that the Magistrate under Section 205(1) of the Cr.P.C., is empowered to exempt the appearance of the accused, and under sub-section (2), the Magistrate is empowered at any stage to direct personal appearance of the accused. Hence, as and when the personal appearance of the accused is required, the Magistrate is empowered to issue necessary orders if so decides. 9. A reading of the decisions referred to above would indicate that the Magistrate is empowered to grant exemption from personal appearance of the accused under Section 205(1) of the Cr.P.C., even for recording the plea. Continued presence can also be dispensed with under Section 317 of the Cr.P.C. But the Magistrate also has the power to direct personal appearance of the accused at any time subsequently, either for questioning under Section 313 of the Cr.P.C. or for pronouncing the Judgment and to receive the sentence. This Court cannot, exercising jurisdiction under Section 482 of the Cr.P.C., direct the Magistrate to _CRL.MC NO. 2627 OF 2021_ 11 impose only a sentence of fine in cases where a sentence of imprisonment is also prescribed. It is also not feasible for this Court to direct the Magistrate to record a revised plea of guilty of the accused through his Counsel, when the accused has once pleaded not guilty, appearing in person. 10. I find no reason to interfere with the impugned order, and therefore, it cannot be quashed. However, the petitioner is at liberty to continue to appear through his Counsel under Section 317 of the Cr.P.C., to face trial, on an application being filed by the Counsel. In case the accused is found guilty, the Magistrate has the discretion to direct his appearance in person if it is found essential by the learned Magistrate. The Cr.M.C. is disposed as above. ## **Sd/-** ## **ASHOK MENON** **JUDGE** _dkr_ _CRL.MC NO. 2627 OF 2021_ 12 ## **APPENDIX OF CRL.MC 2627/2021** PETITIONER ANNEXURE ANNEXURE A1 COPY OF THE PETITION CMP 402/2021 IN C.C.485/2017 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES) KOZHIKODE DATED 18.03.2021. ANNEXURE A2 COPY OF THE ORDER DATED 30.04.2021 IN CMP 402/2021 IN CC.485/2017 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE.