Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE31T DAY OF JANUARY201411TH MAGHA, 1935 Crl.MC.No. 692 of 2014 -------------------------- CC NO. 2528/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOCHI ... PETITIONER(S)/ACCUSED: ------------------------------------------ BIJU JOSEPH, RECORD ASSISTANT, E.E. ELECTRICAL, COCHIN PORT TRUST, KOCHI - 682 003. BY ADV. SRI.A.S.SASIDHARAN RESPONDENT(S)/COPLAINANT AND STATE: ------------------------------------------------------------------------ 1. M.NANDAKUMAR, S/O. VIKRAMAN, PRATHEEKSHA, 130 C, MOOLAPILLY ROAD, UDAYAMPEROOR P.O., ERNAKULAM -682 307.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R2 BY PUBLIC PROSECUTOR SMT. S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON3101-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss Crl.M.C.No.692/2014 APPENDIX PETITIONER'S ANNEXURE: ANNEX.A: COPY OF THE ORDER
OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOCHI IN CMP NO.3415/13 IN C.C.NO.2528/12. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss K. RAMAKRISHNAN, J.
------------------------------------------------------------------ Crl.M.C. No.692 of 2014 --------------------------------------------------------------------- Dated this the 31stday of January, 2014 ORDER
This criminal miscellaneous case is filed by the accused in C.C.No.2528/2012 on the file of the Judicial First Class Magistrate Court-I, Kochi, to modify the order in Crl.M.P.No.3415/2013 of that court, under Section 482 of the Code of criminal Procedure (hereinafter called the 'Code').
2. It is alleged in the petition that, the petitioner is the accused in C.C.No.2528/2012 on the file of the Judicial First Class Magistrate Court-I, Kochi. The case was taken on file on the basis of a private complaint filed by the 2nd respondent, alleging offence under Section 138 of the Negotiable Instruments Act. Since, he is an unhealthy person and recently undergone an operation of his right leg in connection with neurological ailment, he filed Crl.M.C. No.692 of 2014 2 Crl.M.P.No.3415/2013 for granting him personal exemption during the trial under Section 205 of the 'Code'. After considering the application, the learned magistrate passed Annexure-A order, allowing the application, restricting the personal appearance of the petitioner only for the purpose of taking bail, recording plea, examination of the petitioner under Section 313 of the 'Code' and on the date on which the case is posted for pronouncing judgment.
3. This condition is being challenged by the petitioner by filing this application. Since I do not find any infirmity in the order and decided to dispose of the application at the admission stage itself after hearing the counsel for the petitioner.
4. Heard the learned counsel for the petitioner.
5. The learned counsel for the petitioner submitted that, since this case is filed under Section 138 of the Negotiable Instruments Act, the presence of the petitioner is not required at all for the purpose of the trial Crl.M.C. No.692 of 2014 3 and so he need not execute a bail bond as well. So according to him the condition is not necessary. In a criminal case, the accused has to appear on summons and execute a bail bond. Even in a bailable offence, the court shall release him on bail with or without conditions and the bail is being executed for the purpose, getting assurance of the presence of the accused during the trial and that cannot be dispensed with. Since it is a summons case, even on the date on which the accused appears and executes the bail bond, the court can record his plea. In this case, where the accused is not interested in examination under Section 313 of the Code. Since he is appearing through counsel under Section 205 of the Code, the court can dispense with his examination under Section 313 of the Code also in view of the proviso to Section 313(b) of the Criminal Procedure Code is on the date of execution of bail and hear him on the plea of guilt, which can be done on the same day and on the date of pronouncement of judgment. So, he need only to Crl.M.C. No.692 of 2014 4 appear on two occasions. So under the circumstances, I feel that there is no infirmity in the order on the basis of the decision of the Hon'ble Supreme Court in T.G.N. Kumar v. State of Kerala (2011(1) KLT362, on this aspect. So I do not find any infirmity in the order passed, which warrants no inference by this court, invoking power under Section 482 of the Code. So the application is dismissed. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss