Vydheswari and Lekshmi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **CRL.MC.NO.8186 OF 2019(C)** **CC 973/2019 DATED 24-10-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** ## **PETITIONERS/ACCUSED 1 & 2:** **1 VYDHESWARI, AGED 27 YEARS, W/O. SUBU, PERMANENT RESIDENT AT ANNA NAGAR STREET, DOOR NO. 12, ANNA NAGAR (P.O), THUTHUKKUDY DISTRICT, TAMIL NADU, PIN-628 002. 2 LEKSHMI, AGED 37 YEARS, W/O. RAJ, PERMANENT RESIDING AT ANNA NAGAR STREET, DOOR NO. 12, ANNA NAGAR (P.O), THUTHUKKUDY DISTRICT, TAMIL NADU, PIN-628 002.** **BY ADVS. SRI.R.O.MUHAMED SHEMEEM SMT.NASEEHA BEEGUM P.S.** ## **RESPONDENTS/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 SUB INSPECTOR OF POLICE, AROOR POLICE STATION, AROOR, CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN-688 534. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------------Crl.M.C. No. 8186 of 2019 ---------------------------------------Dated this the 22[nd] day of November, 2019 ## O R D E R The prayers in the aforecaptioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. are as follows: “ - _i. Call for the records relating to Anx.A2 order dated 24/10/2019 in CMP No.8525/19 in C.C.No.973/19 learned Judicial First Class Magistrate Court II, Cherthala, and quash the same as illegal, improper and miscarriage of justice._ - _ii. To direct the learned Judicial First Class Magistrate Court II Cherthala, to permit the petitioner's counsel to answer and file written statement to fulfill the formalities under Sec.313 of Code of Criminal Procedure._ - _iii. Grant such other reliefs or relief that may be deemed just and ”_ - _proper._ 2. Heard Sri.R.O.Muhamed Shemeem, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondents. 3. The petitioners are aggrieved by the impugned Anx.A2 order dated 24.10.2019 rendered by the JFCM-II, Cherthala, on Crl.M.P. No.8525/2019 in C.C.No.973/2019, whereby the request of the petitioners under Sec.205 of the Cr.P.C. in the matter of exemption from personal appearance has been denied. The Crl.M.C. No. 8186 of 2019 **==> picture [19 x 9] intentionally omitted <==** petitioners are the accused in the above calender case for offences punishable under Secs.392 r/w 34 of the IPC. 4. From a reading of the impugned Anx.A2 order it appears that, after the remand of the petitioners they were subsequently released on bail and after due execution of their bail bonds etc on 16.8.2019. The case was posted for framing of charges on 27.8.2019. In that time both the accused persons were present and they pleaded not guilty to the allegations. Later on almost all the following postings the petitioners were continuously absent. When the case was posted for Sec.313 Cr.P.C. examination of the accused, the present Crl.M.P. No.8525/2019 has been filed in this case. The trial court found that the conduct of the petitioners in continuously absent from the court has to be seriously taken note of, and has denied the abovesaid plea. 5. The counsel for the petitioners would point out that the learned Magistrate has not taken into account the principles laid down by the Apex Court and various High Courts in various decisions as in _**Basavaraj R.Patil and Others v. State of Karnataka and Others [(2000) 8 SCC 740]**_ etc. Crl.M.C. No. 8186 of 2019 ..4.. In **Basavaraj R.Patil** 's case supra, in the majority judgment, the Apex Court has held that though as per Sec.313 (1)(b) of the Cr.P.C., the Court has to question the accused _“personally”_ but in appropriate cases depending upon the factual exigencies, the Court has the discretion to allow the counsel for the accused to answer on his behalf. For that purpose, the accused will have to file a petition before the court as an application along with an affidavit sworn to by the accused persons containing the following matters: - a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. - b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. - c) An undertaking that he would not raise any grievance on that score at any stage of the case. 6. However, a perusal of the said judgment would make it clear that in the facts of that case the accused persons were then abroad, and they found it extremely difficult to travel all the way to India for the purpose of Sec.313 Cr.P.C. process, and it is in the Crl.M.C. No. 8186 of 2019 **==> picture [18 x 9] intentionally omitted <==** context of such factual scenario that this Court has held that the vexatious discretion is vested with the criminal trial court to given such permission in deserving and exceptional cases. 7. In the facts of this case, the petitioners are not been able to show any exceptional situation in this case which warrants such a cause of action. Moreover, the application said to have been filed by the petitioners is only for exemption from personal appearance as per Sec.205 of the Cr.P.C. In **Basavaraj R.Patil** 's case supra, it is seen that the abovesaid plea for permitting the accused to undergo Sec.313 Cr.P.C. questioning process through counsel, is in respect of persons who have already granted exemption from personal appearance in terms of Sec.205 of the Cr.P.C. The present plea now put forward by the counsel for the petitioners have never been urged before the learned Magistrate. That apart, the reading of the impugned order would also make it clear that since both the accused persons were from outside the State, there are difficulties even in producing sureties to the satisfaction of the trial court. No factual scenario is put forth by the petitioners as to how they deserve not only exemption from Crl.M.C. No. 8186 of 2019 ..6.. personal appearance under Sec.205 of the Cr.P.C. but also the abovesaid special procedure dealt with in the abovesaid judgment. Moreover, the petitioners were consistently absent before the trial court, after the framing of charges. 8. In the light of these aspects, the views taken by the learned Magistrate holding that the pleas of the petitioners cannot be entertained, etc cannot be said to be illegal, unreasonable and unfair. 9. However, the counsel for the petitioner would point out that the learned Magistrate has made certain remarks about the petitioners which are highly unwarranted. It is brought to the notice of this Court by the learned counsel appearing for the petitioners that the trial is almost in the fag end. 10. The learned Prosecutor has pointed out that the abovesaid observations would have been made by the learned Magistrate, only in the context of the apprehension raised by the prosecution about the strong possibility of petitioners being abscondoning, and that they may have adverse criminal antecedents, etc. Crl.M.C. No. 8186 of 2019 **==> picture [18 x 9] intentionally omitted <==** 11. After hearing both sides this Court is of the view that the said observations made by the learned Magistrate was not really called for or warranted, and should be expunged. Accordingly it is ordered that, the sentence _“I strongly believe that the petitioners belong to a gang of thieves who involves in similar activities and may be behind bars for involvement in any such case”_ will stand expunged and deleted from Anx.A2 order. The apprehension raised by the counsel for the petitioners regarding the bias of the court, etc does not appear to be credible or probable, and it is hoped and expected that the trial court will rise up to the occasion to ensure that confidence of not only the prosecution but also of the accused is elicited in the fairness of the trial procedure. 12. Having regard to the facts and circumstances of the case, it is ordered that the JFCM-II, Cherthala, will take up all reasonable endeavours possible so as to ensure that the trial in C.C. No. 973/2019 is completed without much delay, preferably within a period of one month from the date of production of a certified copy of this order. Crl.M.C. No. 8186 of 2019 **==> picture [20 x 9] intentionally omitted <==** 13. Registry will forward a copy of this order to the JFCMII, Cherthala, who is dealing with C.C. No. 973/2019 for necessary information and further action. With these observations and directions, the above Criminal Miscellaneous Case will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 8186 of 2019 ..9.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE DEPOSITION OF PW1/DEFACTO COMPLAINANT, IN CC NO. 973 OF 2019 BEFORE THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT II.** ## **ANNEXURE A2** **CERTIFIED COPY OF THE ORDER DATED 24.10.2019 IN CMP NO.8525/19 IN CC NO. 973/19 JUDICIAL FIRST CLASS MAGISTRATE COURT II CHERTHALA.**