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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 27^TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946 CRL.MC NO. 10405 OF 2023 AGAINST THE ORDER DATED 08.11.2023 IN CC NO.1216 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI PETITIONER:

CHINNAMMA GEORGE, AGED 86 YEARS W/O KORA GEORGE, KALAGRAHAM, NELLIMATTOM, KOTHAMANGALAM, ERNAKULAM, PIN - 686691 BY ADVS. C.S.MANU DILU JOSEPH C.A.ANUPAMAN T.B.SIVAPRASAD C.Y.VIJAY KUMAR MANJU E.R.

ANANDHU SATHEESH ALINT JOSEPH PAUL JOSE RESPONDENTS:

1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031

2 HIGH COURT OF KERALA REPRESENTED BY REGISTRAR GENERAL SUO MOTU IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 20.01.2025)

OTHER PRESENT:

PP M.C.ASHI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

23.01.2025, THE COURT ON 27.01.2025 PASSED THE FOLLOWING:

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V.G.ARUN, J = = = = = = = = = = = = = = = = =

Crl.MC.No.10405 of 2023 = = = = = = = = = = = = = = = = = =

Dated this the 27th day of January, 2025

ORDER

Petitioner is the sole accused in C.C.No.1216 of 2022 on the files of the Judicial First Class Magistrate Court-II, Kochi. The case originated from Crime No.1731 of 2014 registered at the Palluruthy Police Station for the offence under Section 420 read with 34 of IPC against petitioner and two others. On filing of final report, the case was numbered as C.C.No.1584 of 2015 and after trial and final hearing, the case was posted for pronouncement of judgment. The petitioner having remained absent on the date of judgment, her case was split up and re- numbered as C.C.No.1216 of 2022, and judgment pronounced in the case of the other two accused, sentencing them to undergo rigorous imprisonment for three years and pay fine of Rs.10,000/- each.

2. Learned counsel for the petitioner submits that his client, aged 84 years, was disabled from being present on the date of judgment as she is suffering from colon cancer (carcinoma rectum middle third). Even though a petition under Section 353 read with 205 of Cr.P.C, to exempt petitioner from personal appearance and permit her counsel to receive the judgment was submitted, trial court rejected the petition as per Annexure A-5 order. It is submitted that the petitioner is even now bedridden and in her present condition, it is not possible for her to be present in court. Referring to the proviso to Section 353(6) of the Code of the Criminal Procedure, it is contended that since two out of the three accused were present in court on the date of judgment, the learned Magistrate could have pronounced judgment in the petitioner's case also, notwithstanding her absence. It is the contention of the learned counsel that this Court, in exercise of the inherent power vested with it under Section 482 of the Code, can permit the petitioner to appear in court through virtual mode on the date of judgment.

3. I heard the learned Public Prosecutor also.

4. Chapter XXVII of the Code deals with judgments in criminal cases. Section 353(6) therein makes the attendance of the accused, other than those in custody, mandatory for hearing the judgment, except in cases where personal appearance of the accused is dispensed with during trial and the sentence is one of fine only or when the accused is acquitted.

5. The proviso to Section 353(6) of the Code carves out an exception to this mandate by empowering the court to pronounce judgment even in the absence of one or more accused, if the other accused are in attendance. In the case at hand, instead of adopting such procedure, judgment was pronounced in the case of the accused present in court after splitting up the petitioner's case. Such procedure having been adopted, benefit of the proviso to section 353(6) cannot now be extended to the petitioner. Be that as it may, this Court cannot be oblivious to the plight of the petitioner, an aged and sickly lady. In situations like this, the Electronic Video Linkage Rules for Courts (Kerala), 2021 can be put to u