Sujith Simon v. Mujeeb Rahman P and The State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 TR.P(CRL.) NO. 20 OF 2024** **ST 1269/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **PERINTHALMANNA** ## **PETITIONER/ACCUSED:** SUJITH SIMON, AGED 35 YEARS, S/O SIMON CHERIAN, SUNSHINE, MANAKKALA P.O, ENATHU, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN - 691551 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. ## **RESPONDENTS/COMPLAINANT & STATE:** 1 MUJEEB RAHMAN P, AGED 43 YEARS, S/O HAMSA, PACHEERI HOUSE, PATHAIKKARA P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679322 2 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, KOCHI, PIN - 682031 BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Tr.P(Crl).No.20 of 2024 2 K.BABU, J . -------------------------------------- Tr.P (Crl).No.20 of 2024 --------------------------------------Dated this the 5[th ] day of February, 2024 ## O R D E R The petitioner is the accused in S.T No.1269/2022 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna. He is alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner seeks transfer of the case from the Judicial First Class Magistrate Court-I, Perinthalmanna to the Judicial First Class Magistrate Court, Adoor. 2. The petitioner alleges that he faces threat from the complainant and his men. It is submitted that the Trial Court has issued non-bailable warrant against the petitioner due to his nonappearance. It is submitted that he failed to appear before the Court because of the fact that he faced threat from the complainant. So, he finds it difficult to go and engage a lawyer. 3. The learned counsel for the petitioner submitted that the presence of the petitioner during the course of trial is not at all Tr.P(Crl).No.20 of 2024 3 required in view of the nature of the offence alleged against him. It is submitted that the petitioner is prepared to undertake that a counsel on his behalf would be present in the Court and that he 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. 4. 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 conditions, allow the accused not to appear in person and permit him to be represented through a counsel. 5. 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. permits 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 Tr.P(Crl).No.20 of 2024 4 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. 6. 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. 7. 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 Sections 205 and 317 of Cr.P.C. and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable. 8. 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 Tr.P(Crl).No.20 of 2024 5 petitioner during the course of trial. Therefore, the Transfer Petition (Criminal) is disposed of as follows: - (i) The non-bailable warrant issued against the petitioner is set aside. - (ii) The petitioner is granted permanent exemption from appearance under Section 205 (1) of Cr.PC - and to represent him by his counsel at the time of trial. - (iii) The petitioner shall file an affidavit undertaking that a counsel on his behalf will be present in the Court and that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence. - (iv) If the petitioner makes any request seeking protection on the ground of genuine threat on the part of the complainant, the Superintendent of Police, Malappuram shall make arrangements to give necessary protection to the petitioner. Tr.P(Crl).No.20 of 2024 6 - (v) The petitioner is at liberty to move an application seeking transfer of the case in future, if he is advised so. Sd/K.BABU, JUDGE KAS Tr.P(Crl).No.20 of 2024 7 ## **APPENDIX OF TR.P(CRL.) 20/2024** PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE COMPLAINT IN S.T NO.1269/2022 ON THE FILES OF JFMC-I, PERINTHALMANNA Annexure A1(a) THE COPY OF THE CERTIFIED COPY OF CHEQUE VIDE NO.00016 DATED 02.11.2022 DRAWN ON ACCOUNT NO.50100084876998 OF HDFC BANK, ADOOR BRANCH FOR AN AMOUNT OF RS.9,50,000/- (RUPEES NINE LAKHS AND FIFTY THOUSAND ONLY) Annexure A2 THE TRUE SCREENSHOTS OF WHATSAPP CHATS BETWEEN THE PETITIONER AND MR. ANEEZ VAHAB ON 17.10.2022 Annexure A2(a) THE TRUE TRANSCRIPT OF THE VOICE NOTES HAVING LENGTH 0.02 SEC., 0.04 SEC., 0.06 SEC., 0.37 SEC. AND 0.03 SEC. APPEARING IN ANN.A2 SCREENSHOT BETWEEN PETITIONER AND MR. ANEEZ VAHAB Annexure A3 THE TRUE COPY OF THE COMPLAINT DATED 22.10.2022 PREFERRED BY THE PETITIONER TO THE DISTRICT POLICE CHIEF, ALAPPUZHA Annexure A3(a) THE TRUE COPY OF THE COMPLAINT DATED 27.10.2022 PREFERRED BY THE PETITIONER TO THE STATION HOUSE OFFICER, ADOOR POLICE STATION, PATHANAMTHITTA DISTRICT ALONG WITH RECEIPT VIDE NO.152990052022-5-00301 DATED 27.10.2022 Annexure A3(b) THE TRUE COPY OF THE COMPLAINT DATED 27.10.2022 PREFERRED BY THE PETITIONER TO THE DISTRICT POLICE CHIEF, PATHANAMTHITTA Annexure A3(c) THE TRUE COPY OF THE COMPLAINT DATED 27.10.2022 PREFERRED BY THE PETITIONER TO THE DIRECTOR GENERAL OF POLICE Annexure A3(d) THE TRUE COPY OF THE COMPLAINT DATED 27.10.2022 PREFERRED BY THE PETITIONER TO THE CHIEF MINISTER OF KERALA Annexure A4 THE TRUE COPY OF THE POSTAL RECEIPTS DATED 27.10.2022 OF SENDING ANN.A3 AS WELL AS ANN.A3(B) TO ANN.A3(D) COMPLAINTS Tr.P(Crl).No.20 of 2024 8 - Annexure A5 THE TRUE COPY OF THE REPLY DATED 01.12.2022 OF THE PETITIONER/ACCUSED SEND TO THE DEMAND NOTICE OF THE RESPONDENT/COMPLAINANT - Annexure A6 THE TRUE COPY OF THE LETTER DATED 14.11.2022 ISSUED TO THE PETITIONER BY INSPECTOR OF POLICE, ADOOR POLICE STATION, PATHANAMTHITTA DISTRICT - Annexure A7 THE TRUE COPY OF THE COMPLAINT DATED 30.11.2022 SUBMITTED BY THE PETITIONER BEFORE THE SHO, ADOOR POLICE STATION AGAINST RESPONDENT/COMPLAINANT, MR. ANEEZ VAHAB AND HIS SISTER - Annexure A7(a) THE TRUE COPY OF THE RECEIPT VIDE NO.15295030-2022-5-00413 DATED 30.11.2022 ISSUED BY THE PERINTHALMANNA POLICE, MALAPPURAM DISTRICT TO THE PETITIONER - Annexure A8 THE TRUE COPY OF THE JOINT COMPLAINT DATED 21.11.2023 SUBMITTED BY THE PETITIONER AND HIS FRIEND MRS. CLIYA DALVIN BEFORE THE STATION HOUSE OFFICER, ADOOR ALONG WITH RECEIPT VIDE NO.15299005-2023-5-01421 DATED 22.11.2023 - Annexure A8(a) THE TRUE COPY OF THE JOINT COMPLAINT DATED 30.11.2023 SUBMITTED BY THE PETITIONER AND HIS FRIEND MRS. CLIYA DALVIN BEFORE THE DISTRICT POLICE CHIEF, PATHANAMTHITTA ALONG WITH RECEIPT VIDE NO.2870/CAMP/DPC/PTA/2023 DATED 30.11.2023