Stanly Simon and Zeenath Stanly v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 CRL.MC NO. 1684 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTCC 152/2012 OF CHIEF JUDICIAL ``` ## **`MAGISTRATE PATHANAMTHITTA`** ## **`CRIME NO. 509 OF 2011 OF PATHANAMTHITTA POLICE STATION PETITIONER/S:`** ``` 1STANLY SIMON AGED 37 YEARS S/O SIMON C. THOMAS, ASSANPARAMBIL HOUSE, PAZHAMPALAKKAD MURI, PAZHAMPALAKKAD VILLAGE, THAROOR-1, ALATHOOR TALUK, PALAKKADU DISTRICT. PIN 678544, PIN - 678544 2ZEENATH STANLY AGED 42 YEARS W/O STANLY SIMON, ASSANPARAMBIL HOUSE, PAZHAMPALAKKAD MURI, PAZHAMPALAKKAD VILLAGE, THAROOR-1, ALATHOOR TALUK, PALAKKADU DISTRICT. PIN678544, PIN - 678544 ``` ``` BY ADV K.N.RADHAKRISHNAN(THIRUVALLA) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH Crl.MC.1687/2023, 1874/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..2.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 CRL.MC NO. 1687 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTCC 150/2012 OF CHIEF JUDICIAL ``` ## **`MAGISTRATE PATHANAMTHITTA`** ``` CRIME NO.509 OF 2011 OF PATHANAMTHITTA POLICE STATION PETITIONER/S: ``` ``` 1STANLY SIMON AGED 37 YEARS S/O SIMON C. THOMAS, ASSANPARAMBIL HOUSE, PAZHAMPALAKKAD MURI, PAZHAMPALAKKAD VILLAGE, THAROOR-1, ALATHOOR TALUK, PALAKKADU DISTRICT. PIN 678544, PIN - 678544 2ZEENATH STANLY AGED 42 YEARS W/O STANLY SIMON, ASSANPARAMBIL HOUSE, PAZHAMPALAKKAD MURI, PAZHAMPALAKKAD VILLAGE, THAROOR-1, ALATHOOR TALUK, PALAKKADU DISTRICT. PIN 678544, PIN - 678544 ``` ``` BY ADV K.N.RADHAKRISHNAN(THIRUVALLA) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH Crl.MC.1684/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..3.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 CRL.MC NO. 1874 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENTCC 151/2012 OF CHIEF JUDICIAL ``` ## **`MAGISTRATE PATHANAMTHITTA`** ## **`CRIME NO.509 OF 2011 OF PATHANAMTHITTA POLICE STATION PETITIONER/S:`** ``` 1STANLY SIMON AGED 37 YEARS S/O SIMON C. THOMAS, ASSANPARAMBIL HOUSE, PAZHAMPALAKKAD MURI, PAZHAMPALAKKAD VILLAGE, THAROOR-1, ALATHOOR TALUK, PALAKKADU DISTRICT, PIN - 678544 2ZEENATH STANLY AGED 42 YEARS W/O STANLY SIMON, ASSANPARAMBIL HOUSE, PAZHAMPALAKKAD MURI, PAZHAMPALAKKAD VILLAGE, THAROOR-1, ALATHOOR TALUK, PALAKKADU DISTRICT. PIN 678544, PIN - 678544 ``` ``` BY ADV K.N.RADHAKRISHNAN(THIRUVALLA) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.03.2023, ALONG WITH Crl.MC.1684/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..4.. ## **ORDER** The petitioners are accused Nos. 1 & 5 in C.C.No.151 of 2012 of the Chief Judicial Magistrate Court, Pathanamthitta. They face charges under Sections 406, 420 r/w Section 34 of IPC. On receipt of the summons, the petitioners appeared before the Court. During the course of trial, the first petitioner was diagonised with cancer. Petitioner No.2 is his wife. Therefore, the petitioners filed applications under Section 205 of Cr.P.C. seeking exemption from appearance in the Court and to permit them to be represented through a lawyer. 2. The trial Court rejected the applications submitted by the petitioners (Annexure-4 and Annexure5). The petitioners challenge the dismissal of the applications under Section 205 Cr.P.C. in these proceedings. `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..5.. 3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the presence of the petitioners during the course of trial is not at all required in view of the nature of the charges levelled against them. The learned counsel further submitted that the petitioners are prepared to undertake that they would not dispute their identity, a counsel on their behalf would be present in the Court and that they have no objection in taking the evidence in their absence treating the presence of the counsel as their presence in compliance with section 317 of Cr.P.C.. 5. 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 `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..6.. conditions, allow the accused not to appear in person and permit him to be represented through a counsel. 6. 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. permit 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 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. 7. 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.. `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..7.. 8. 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 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. 9. 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 petitioners during the course of trial. Therefore, Crl.M.Cs. are allowed. - (i) The orders dated 12.01.2023 in Crl.MP Nos.204, 205, 206, 207, 208 and 209 of 2023 are set aside. - (ii) The petitioners are granted permanent exemption from appearance under Section `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..8.. 205(1) of Cr.P.C. and to represent them by their Counsel at the time of trial. (iii)The petitioners shall file affidavits in tune with the directions in **M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others** through their counsel. **Sd/K. BABU, JUDGE** kkj `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..9.. ## **`APPENDIX OF CRL.MC 1684/2023`** ``` PETITIONER ANNEXURES Annexure 1THE COPY OF FINAL REPORT IN C.C 152 /2012 OF THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA DATED 06.09.2012 Annexure 2THE COPY OF MEDICAL CERTIFICATE DATED 30.09.2020 ISSUED FROM THE AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM Annexure 3THE COPY OF MEDICAL CERTIFICATE DATED 07.02.2023 ISSUED FROM THE AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM Annexure 4THE COPY OF ORDER IN CRL. MP NO. 208/2023 IN CC 152/2012 DATED 12.01.2023 Annexure 5THE COPY OF ORDER IN CRL. MP NO. 209/2023 IN CC 152/2012 DATED 12.01.2023 ``` `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..10.. ## **`APPENDIX OF CRL.MC 1687/2023`** ``` PETITIONER ANNEXURES Annexure 1THE COPY OF FINAL REPORT IN C.C 150 /2012 OF THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA DATED 04.09.2012 Annexure 2THE COPY OF MEDICAL CERTIFICATE DATED 30.09.2020 ISSUED FROM THE AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM Annexure 3THE COPY OF MEDICAL CERTIFICATE DATED 07.02.2023 ISSUED FROM THE AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM Annexure 4THE COPY OF ORDER IN CRL. MP NO. 205/2023 IN CC 150/2012 DATED 12.01.2023 Annexure 5THE COPY OF ORDER IN CRL. MP NO. 204/2023 IN CC 150/2012 DATED 12.01.2023 ``` `CRL.MC NO. 1684, 1687 & 1874 OF 2023` ..11.. ## **`APPENDIX OF CRL.MC 1874/2023`** ``` PETITIONER ANNEXURES Annexure 1THE COPY OF FINAL REPORT IN C.C 151 /2012 OF THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA DATED 05.09.2012 Annexure 2THE COPY OF MEDICAL CERTIFICATE DATED 30.09.2020 ISSUED FROM THE AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM Annexure 3THE COPY OF MEDICAL CERTIFICATE DATED 07.02.2023 ISSUED FROM THE AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM Annexure 4THE COPY OF ORDER IN CRL. MP NO. 207/2023 IN CC 151/2012 DATED 12.01.2023 Annexure 5THE COPY OF ORDER IN CRL. MP NO. 206/2023 IN CC 151/2012 DATED 12.01.2023 ```