It is an admitted fact that the petitioner is the 4th accused in C.C. No. 1731 of 2014 on the file of the Judicial First Class Magistrate's Court-V, Kozhikode. It is also an admitted fact that he was on bail and thereafter, he filed Annexure-VII application for personal exemption under Section 205 of the Code. In fact in the application, it was mentioned that he met with accident and suffered fracture and he is undergoing treatment for the same and internal fixation was done. He was also advised that he will have to undergo another operation for removal of the internal fixation and he will have to be under bed rest for long time. So he is not able to attend on all days. He may be permitted to answer the questions under Section 313 of the Code and also other statements, if any required, through his counsel Sri K. Pradeepan, Advocate, Kozhikode. So he prayed for allowing the application. He had also produced Annexure-VI Medical Certificate dated 14-12-2014 along with this application, in which it was mentioned that he suffered fracture and suffering from post-operative stiffness, and he was advised rest for 90 days from 14-12-2014. The application was pending from 2015 onwards. It appears that thereafter, he met with another accident and he had produced Annexure-XI to XV to prove that fact before this Court. However, these documents were not produced by the petitioner before the court below. He had produced only Annexure-VI along with Annexure-VII petition and under that circumstances, it cannot be said that the court below had committed any illegality in dismissing the application by passing Annexure-VIII order.
It is true that if the court is satisfied that the presence of the petitioner is not required on all occasions, when the presence of the petitioner can be obtained without difficulty, whenever his presence is required, the court can permit the petitioner to appear through his counsel restricting the days of his presence in the court, whenever his presence is required, and on which days it cannot be dispensed with. Further, granting personal exemption under Section 205 of the Code, is not a relief claimed as of right as well. It is a discretion to be exercised by the court, considering the circumstances mentioned in the petition. So under the circumstances, on the basis of the allegations made and the documents produced before the court below, the court below was not satisfied for granting exemption and that was the reason why the application has been dismissed. This Court does not find any reason to interfere with Annexure-VHI order.
IN THE HIGH COURT OF KERALA
Cri. M.C. No. 1462 of 2016
Decided On: 10.05.2016
M.P. Shahul Hameed
Vs.
State of Kerala and Ors.
Hon'ble Judges/Coram:
K. Ramakrishnan, J.
1. This is an application filed by the 4th accused in C.C. No. 1731 of 2014 on the file of the Judicial First Class Magistrate's Court-V, Kozhikode, challenging the order passed in C.M.P. No. 2579 of 2014 in that case under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). It is alleged in the petition that the petitioner has been arrayed as 4th accused in C.C. No. 1731 of 2014 on the file of the Judicial First Class Magistrate's Court-V, Kozhikode. There was a civil dispute regarding the property between the 5th accused and the others, which prompted the filing of a false complaint, resulted in registration of the crime and the filing of the Final Report.
2. According to the petitioner, it is a pure civil dispute. The petitioner is an Advocate Clerk. He met with accidents on 21.12.2009, 21.5.2012 and 14.12.2014 and he suffered fracture of his right leg. He underwent surgery on 3 occasions and internal fixation was done. He was granted bail in the case. Thereafter, he filed Annexure-VII application to dispense with his personal appearance under Section 205 of the Code. Thereafter, he met with another accident on 1.2.2016. He has to undergo another surgery on 4.3.2016. He was not able to move about. But the learned Magistrate by Annexure-VIII order dismissed the application. Aggrieved by the same, the present petition has been filed.
3. Heard Dr. Sri V.N. Sankarjee, the learned counsel appearing for the petitioner and Adv. Sri Jibu P. Thomas, the learned Public Prosecutor appearing for the respondents.
4. The learned counsel for the petitioner submitted that the reasons stated by the court below for dismissing the application is unsustainable in law and the lower court ought to have taken a liberal view and allowed the application.
5. On the other hand the learned Public Prosecutor opposed the application on the ground that the court below had correctly dismissed the application.
6. It is an admitted fact that the petitioner is the 4th accused in C.C. No. 1731 of 2014 on the file of the Judicial First Class Magistrate's Court-V, Kozhikode. It is also an admitted fact that he was on bail and thereafter, he filed Annexure-VII application for personal exemption under Section 205 of the Code. In fact in the application, it was mentioned that he met with accident and suffered fracture and he is undergoing treatment for the same and internal fixation was done. He was also advised that he will have to undergo another operation for removal of the internal fixation and he will have to be under bed rest for long time. So he is not able to attend on all days. He may be permitted to answer the questions under Section 313 of the Code and also other statements, if any required, through his counsel Sri K. Pradeepan, Advocate, Kozhikode. So he prayed for allowing the application. He had also produced Annexure-VI Medical Certificate dated 14-12-2014 along with this application, in which it was mentioned that he suffered fracture and suffering from post-operative stiffness, and he was advised rest for 90 days from 14-12-2014. The application was pending from 2015 onwards. It appears that thereafter, he met with another accident and he had produced Annexure-XI to XV to prove that fact before this Court. However, these documents were not produced by the petitioner before the court below. He had produced only Annexure-VI along with Annexure-VII petition and under that circumstances, it cannot be said that the court below had committed any illegality in dismissing the application by passing Annexure-VIII order.
7. It is true that if the court is satisfied that the presence of the petitioner is not required on all occasions, when the presence of the petitioner can be obtained without difficulty, whenever his presence is required, the court can permit the petitioner to appear through his counsel restricting the days of his presence in the court, whenever his presence is required, and on which days it cannot be dispensed with. Further, granting personal exemption under Section 205 of the Code, is not a relief claimed as of right as well. It is a discretion to be exercised by the court, considering the circumstances mentioned in the petition. So under the circumstances, on the basis of the allegations made and the documents produced before the court below, the court below was not satisfied for granting exemption and that was the reason why the application has been dismissed. This Court does not find any reason to interfere with Annexure-VHI order. But it is made clear that that will not prevent the petitioner to file a fresh application showing sufficient reasons for seeking personal exemption and also producing documents preventing him from appearance on all days and permitting him to appear before the court through counsel and if such an application is filed, the court below is directed to consider and pass appropriate orders, in accordance with law. Further, if any warrant has been issued against the petitioner and if the petitioner surrenders before the court and files an application for recalling the warrant, then the court below is directed to consider and dispose of that application also along with application filed by the petitioner to grant personal exemption under Section 205 of the Code afresh, as far as possible, on the date of filing itself, considering the documents produced along with the petition and also considering the question as to whether the presence of the accused is required on all days and whether his presence can be restricted to particular days, on which his presence is required for proper disposal of the case.
With the above direction and observation, this Crl.M.C. is disposed of.
Office is directed to communicate this order to the concerned court immediately.
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