The court can permit counsel representation in lieu of personal attendance under specific legal conditions.

O R D E R

The petitioner is the accused in S.T No.4458/2015 on the file of the Judicial First Class Magistrate Court-I, Aluva. He is alleged to have committed the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner seeks transfer of the case from the Judicial First Class Magistrate Court-I, Aluva to the Judicial First Class Magistrate Court, Kottayam.

2. The learned counsel for the petitioner submitted that the petitioner is suffering from Parkinson’s disease and is undergoing treatment at Caritas Hospital, Kottayam. It is difficult for the petitioner to travel all the way from Kottayam to Aluva and, therefore, he seeks transfer of the proceedings.

3. This Court is not inclined to order transfer of the case.

4. It is submitted that the petitioner is prepared to undertake that a counsel on his behalf would be present in the Court and that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence in compliance with Section 317 of the Cr.P.C./Section 355 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( BNSS ).

5. 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.

6. 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.

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 this 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 prayer for transfer of the case stands rejected.

(ii) The petitioner is granted permanent exemption from appearance under Section 205 (1) of Cr.PC/ Section 288 of the BNSS and to represent him by his counsel at the time of trial.

(iii) The petitioner shall file an affidavit undertaking that a counsel on his behalf will be present in the Court and that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence.

Sd/-

K.BABU JUDGE