The court confirmed that exemptions from personal appearance can be granted under Sections 205 and 317 of the Cr.P.C. when the accused has valid grounds for incapacitation.

JUDGMENT

The prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows:-

“1) To issue a direction directing the JFMC-II, Palakkad to accept and consider Ext.P2 application as also application for personal exemption in CC.No.1303/2023 on its file without insisting for the physical presence of the petitioner, in the interest of justice;

2) Dispense with the production of English translations of Exhibits in vernacular; And

3) Such other Orders or Directions which deem fit on facts and in the interest of justice.”

2. The petitioner is the accused in C.C.No.1303/2022 on the file of the Judicial First Class Magistrate Court-II, Palakkad. He is alleged to have committed offence punishable under Section 138 of the Negotiable Instruments Act. Ext.P1 case status available in the e-courts website reveals that on 30.12.2023, the learned Magistrate issued summons to the petitioner. On the next posting date that is on 04.03.2024, the Court issued bailable warrant to the accused and on 12.06.2024 a non-

bailable warrant issued returnable by 29.08.2024.

3. The learned counsel for the petitioner submitted that the petitioner has already engaged a lawyer and submitted an application to recall the non-bailable warrant issued against him. It is submitted that the learned Magistrate did not consider the application. The learned counsel for the petitioner submitted that in view of the nature of offence alleged the presence of the petitioner during the course of trial is not at all required. The learned counsel for the petitioner submitted that the petitioner is physically incapacitated to appear before the Court as she is undergoing treatment in the hospital. It is further submitted that the petitioner is prepared to undertake that a counsel on her behalf would be present in the Court and that she has no objection in taking evidence in her absence treating the presence of the counsel as her 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 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 petitioner during the course of trial.

Therefore, the Original 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 und