Sonu Mon S.R vs State Of Kerala
2021 Latest Caselaw 14764 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE ASHOK MENON
      THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                         CRL.MC NO. 2627 OF 2021
    AGAINST THE ORDER/JUDGMENT IN CC 485/2017 OF SPECIAL JUDICIAL
   MAGISTRATE OF FIRST CLASS FOR TRIAL OF MARADU CASES, KOZHIKODE,
                                 KOZHIKODE
PETITIONER/S:

            SONU MON S.R
            AGED 30 YEARS
            S/O.SUNIL KUMAR, THITTAYIKULAM (H), VAKKOM P.O.,
            CHIRAYINKEZHU, THIRUVANANTHAPURAM DISTRICT 695 308

            BY ADV P.ANOOP (MULAVANA) (K/1037/2005)-10922



RESPONDENT/S:

            STATE OF KERALA
            REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM 682 031.


OTHER PRESENT:

            SR.PP. SRI.C.S. HRITWIK




     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
30.06.2021, THE COURT ON 15.07.2021 DELIVERED THE FOLLOWING:
 CRL.MC NO. 2627 OF 2021
                                      2




                                  O R D E R

Petition filed under Section 482 of the Cr.P.C.

2. The petitioner is the sole accused in

C.C.No.485/2017 on the files of the Special Judicial First

Class Magistrate Court (Marad Cases) Kozhikode, alleging

offences punishable under Sections 279, 337 and 338 of the

I.P.C. He was enlarged on bail and then granted exemption

from personal appearance to go abroad for employment. The

petitioner is presently in Singapore and has been appearing

through Counsel for the trial. He intends to apply for

permanent residence in Singapore. Due to the pandemic

situation, he is not able to travel to India. He wants to

plead guilty through his Counsel. The petitioner filed

C.M.P.No.402/2021 at Annexure 1 before the jurisdictional

Magistrate seeking permission to plead guilty through

Counsel. The learned Magistrate, however, dismissed the

application vide Annexure 2 Order stating that his presence

in person is essential while receiving the sentence on a CRL.MC NO. 2627 OF 2021

plea of guilty. Aggrieved by that Order, the petitioner is

before this Court seeking to quash the impugned Order.

3. The petitioner states that he had appeared before

the trial Court and pleaded not guilty. Subsequently, he

was granted a permanent exemption under Section 205 of the

Cr.P.C. and permitted to appear through his Counsel. He

went to Singapore and got employed. For the last three

years, his Counsel has been representing him. It is

contended that the dismissal of the petitioner's request to

record his plea again and permit him to plead guilty to his

Counsel, is not proper. Hence, it is prayed that the

Annexure-2 Order may be quashed, and the learned Magistrate

may be directed to record the plea of the accused once

again, to enable him to plead guilty through his Counsel.

4. Heard the learned Counsel Shri P.Anoop appearing

for the petitioner and the learned Public Prosecutor for

the State.

5. The learned Counsel for the petitioner submits

that the petitioner has been exempted from personal CRL.MC NO. 2627 OF 2021

appearance under Section 205(1) of the Cr.P.C and is being

represented by his Counsel. The learned Counsel relies on

the decision of the Hon'ble Supreme Court in M/s. Bhaskar

Industries Ltd vs. M/s. Bhiwani Denim and Apparels Ltd and

others, AIR 2001 (3) SCC 3625 to argue that the accused

undertakes that he would not dispute his identity and 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., there is no

reason why his presence should be insisted. Relying on the

decision of the Kerala High Court in Noorjahan vs. Moideen,

2000 (2) KLT 756, he argues that the Court has the

discretionary power to accept personal appearance of the

accused, even in warrant cases and to have the plea of the

Council recorded for and on behalf of the accused, when he

is specifically authorised for the purpose and in

appropriate cases. If, after considering all the aspects

of the case, Court holds that the personal attendance of

the accused is not essential, the Court can dispense with CRL.MC NO. 2627 OF 2021

the personal attendance of the accused and the plea of the

counsel can be recorded and based on such plea, the Court

can either convict the accused or proceed to have the

trial. The learned Counsel also points to another decision

of the Kerala High Court in Raju T.P vs. State of Kerala,

2009 (3) KHC 14 to submit that Section 205(1) of the

Cr.P.C. provides that whenever a Magistrate issues a

summons, he may, if he sees reason to do so, dispense with

personal attendance of the accused and permit him to appear

by his pleader. Sub-section (2) of Section 205, Cr.P.C.

enables the Magistrate at any stage of the proceedings to

direct the personal attendance of the accused, if

necessary, despite the permission granted under sub-section

(1). It is submitted that the discretion of the Magistrate

in this regard is to be exercised considering not only the

convenience of the prosecution, but also the difficulties

expressed by the accused. Considering the present pandemic

situation, the petitioner who is in Singapore is not in a

position to appear for trial before the Magistrate and has, CRL.MC NO. 2627 OF 2021

therefore, sought for early disposal of the case by

pleading guilty through his pleader. The learned

Magistrate was not justified in dismissing the request made

by the petitioner.

6. The learned Public Prosecutor submits that the

accusations against the petitioner in the instant case are

for offences punishable under Sections 279, 337 and 338 of

the I.P.C. Imprisonment is provided as punishment for the

offences, and it is the discretion of the Magistrate to

decide whether imprisonment is to be awarded as a

punishment to the petitioner. In case the Magistrate

decides to award a punishment of imprisonment, the presence

of the petitioner becomes essential. Moreover, the

petitioner cannot insist on recording his plea again in

this case, when he has already pleaded not guilty and the

Magistrate has decided to proceed with the trial against

him. Hence, the Magistrate had rightly dismissed the

prayer to record the plea of the petitioner again in his

absence. Once the plea is recorded, and the petitioner CRL.MC NO. 2627 OF 2021

appearing in person has pleaded not guilty, the petitioner

can plead guilty to the accusations only at this stage of

being questioned under Section 313 of the Cr.P.C. and not

before that. It is, therefore, submitted that the Crl.M.C.

may be dismissed.

7. In M/s. Bhaskar Industries Ltd (Supra) the Apex

Court has held thus:

"18. A question could legitimately be asked

- what might happen if the Counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the Counsel does not cooperate in proceeding with the case? We may point out that the Legislature has taken care of such eventualities. S.205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of S.317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.

19. The position, therefore, bogs down to this: It is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the CRL.MC NO. 2627 OF 2021

Magistrate finds that insistence of his presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need to be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised Counsel praying for affording the benefit of his presence being dispensed with, the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."

8. In the instant case, the learned Magistrate had

after recording the plea of the petitioner, allowed his

exemption from personal appearance under Section 205 of the

Cr.P.C. I am sure that the Court may also not insist on his

appearance during the trial. Subsequent exemption of the

accused is to be under Section 317 of the Cr.P.C. In

Chandu Lal Chandraker v. Puran Mal and Another. 2008 KHC CRL.MC NO. 2627 OF 2021

6507 : AIR 1988 SC 2163, the Hon'ble Supreme Court had

allowed the accused, whose personal appearance was exempted

under Section 205 of the Cr.P.C., to appear through his

Counsel for answering the questions under Section 313 of

the Cr.P.C. as well. In Noorjahan (Supra), this Court

held that the trial court has the discretionary power to

exempt the personal appearance of the accused even in

warrant cases and to have the plea of the Counsel recorded

for and on behalf of the accused, when he is specifically

authorised for the purpose and in appropriate cases. If

after considering all the aspects of the case, the Court

holds that the personal attendance of the accused is not

essential, the Court can dispense with the personal

attendance of the accused and the plea of the counsel can

be recorded and based on such plea, the Court can either

convict the accused or proceed to have the trial. Even in

Raju.T.P (Supra), this Court has held that granting

exemption to the accused for recording the plea through the

Counsel is discretionary. In Rameshwar Yadav and Others v. CRL.MC NO. 2627 OF 2021

State of Bihar and Another, 2018 KHC 6191: AIR 2018 SC 1435

it was held by the Apex Court that the Magistrate under

Section 205(1) of the Cr.P.C., is empowered to exempt the

appearance of the accused, and under sub-section (2), the

Magistrate is empowered at any stage to direct personal

appearance of the accused. Hence, as and when the personal

appearance of the accused is required, the Magistrate is

empowered to issue necessary orders if so decides.

9. A reading of the decisions referred to above would

indicate that the Magistrate is empowered to grant

exemption from personal appearance of the accused under

Section 205(1) of the Cr.P.C., even for recording the plea.

Continued presence can also be dispensed with under Section

317 of the Cr.P.C. But the Magistrate also has the power

to direct personal appearance of the accused at any time

subsequently, either for questioning under Section 313 of

the Cr.P.C. or for pronouncing the Judgment and to receive

the sentence. This Court cannot, exercising jurisdiction

under Section 482 of the Cr.P.C., direct the Magistrate to CRL.MC NO. 2627 OF 2021

impose only a sentence of fine in cases where a sentence of

imprisonment is also prescribed. It is also not feasible

for this Court to direct the Magistrate to record a revised

plea of guilty of the accused through his Counsel, when the

accused has once pleaded not guilty, appearing in person.

10. I find no reason to interfere with the impugned

order, and therefore, it cannot be quashed. However, the

petitioner is at liberty to continue to appear through his

Counsel under Section 317 of the Cr.P.C., to face trial, on

an application being filed by the Counsel. In case the

accused is found guilty, the Magistrate has the discretion

to direct his appearance in person if it is found essential

by the learned Magistrate. The Cr.M.C. is disposed as

above.

Sd/-

ASHOK MENON JUDGE dkr CRL.MC NO. 2627 OF 2021

APPENDIX OF CRL.MC 2627/2021

PETITIONER ANNEXURE

ANNEXURE A1 COPY OF THE PETITION CMP 402/2021 IN C.C.485/2017 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES) KOZHIKODE DATED 18.03.2021.

ANNEXURE A2 COPY OF THE ORDER DATED 30.04.2021 IN CMP 402/2021 IN CC.485/2017 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE.