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2024 Supreme(Online)(KER) 39609
HIGH COURT OF KERALA
K. Babu, J
SEENA SOBICHAN – Appellant
Versus
M/S. KLM NIDHI LIMITED – Respondent
TR.P(CRL.) NO. 38 OF 2024
For the Appellants/Petitioners: TOM E. JACOB
For the Respondents: PEEYUS A. KOTTAM
The court can grant permanent exemption from appearance if conditions are met under Sections 205 and 317 of Cr.P.C.
Headnote:This judgment addresses the transfer of criminal cases and permanent exemption from appearance. The court evaluated the petitioner’s claim under Section 138 of the Negotiable Instruments Act and related provisions of the Criminal Procedure Code. The court denied the transfer request but granted a permanent exemption for personal appearance under specific stipulations. The court found that the case does not require the petitioner’s presence during trial proceedings.
| Table of Content |
|---|
| 1. petition for case transfer due to personal difficulties. (Para 1 , 2) |
| 2. court’s discretion under relevant sections for exemptions. (Para 4 , 7 , 8) |
| 3. conditions for permanent exemption from appearance. (Para 5) |
| 4. final decision on appearance and representation. (Para 9) |
ORDER
The petitioner seeks transfer of C.C.Nos.1446/2020, 1454/2020, 1496/2020 and 1497/2020 on the file of the Judicial First Class Magistrate Court-I, Kothamangalam to a court at Kattapana in Idukki District. The petitioner is the accused in the aforesaid cases. She faces offence under Section 138 of the Negotiable Instruments Act .
2. The learned counsel for the petitioner submits that the petitioner being a lady is not in a position to appear before the Trial Court at Kothamanagalam regularly. 3. The learned counsel for the party respondent opposes the relief on the ground that the attempt of the petitioner is to prolong the trial.
4. I find no merit in the relief sought for. Therefore, the relief seeking transfer of the cases stands rejected.
5. The learned counsel for the petitioner seeks permanent exemption to the petitioner from appearing before the court below.
6. 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.
7. 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.
8. 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.
9. Having regard to the facts of this case, this Court is 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 Transfer Petition (Criminal) is disposed of as follows:
(i) The petitioner is granted permanent exemption from appearance under Section 228 of the Bharatiya Nagarik Suraksha Sanhita and to represent her by her counsel at the time of trial.
(ii) The petitioner shall file an affidavit undertaking that a counsel on her behalf will be present in the Court and that she has no objection in taking the evidence in her absence treating the presence of the counsel as her presence.
