Muhammed Junite @ Bellari vs State Of Kerala
2023 Latest Caselaw 10947 Ker

CRL.MC NO. 8736 OF 2023            1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                          CRL.MC NO. 8736 OF 2023
       AGAINST THE ORDER/JUDGMENT SC 1332/2021 OF SUB COURT,
                              KARUNAGAPPALLY
PETITIONER/S:

               MUHAMMED JUNITE @ BELLARI
               AGED 28 YEARS
               S/O. SHAMSUDHEEN, JASMI MANZIL, NALUVARAMBU BHAGOM,
               PALAYKKAL MURI, THEVALAKKARA, PIN - 690524

               BY ADVS.
               PAUL K.VARGHESE
               A.A.GEETHA



RESPONDENT/S:

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


OTHER PRESENT:

               RENJITH ,PP




       THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 8736 OF 2023          2




                      P.V.KUNHIKRISHNAN, J
                  ---------------------------------------
                     Crl.M.C. No.8736 of 2023
                   --------------------------------------
             Dated this the 26th day of October, 2023


                             ORDER

The petitioner is the 1st accused in Crime No. 848/2015 of

Chavara Police Station, which is now pending as SC No.

1332/2021 before the Asst.Sessions Judge, Karunagappally.

The above case is chargesheeted alleging offences punishable

under Secs. 143, 147, 148, 323 and 307 r/w 149 IPC.

2. SC No. 1332/2021 was originally registered as SC

No. 1262/2017 and when the accused did not appear before

the lower court, the case was included in the LP register as LP

No. 2/2020. Subsequently, the 1st accused surrendered before

the court and the LP case was closed and he was granted bail

on 25.10.2011 and accordingly, the present Sessions Case No.

1332/2021 was registered. The case against the accused Nos.

2, 3 and 4 is pending as SC No. 1190/2016 and case against

the 5th accused is pending as SC No. 706/2017. Now, all the

three cases are taken together for trial and the summons is

ordered to the witnesses.

3. The petitioner, who is the 1st accused in the case

filed a permanent exemption petition and as per order dated

08.02.2023 in CMP 246/2022, the permanent exemption was

rejected. The petitioner was exempted from the personal

appearance earlier and it was stipulated that he shall appear

before the lower court during the trial of the case as and when

required. Later when the petitioner was directed to appear for

hearing on the charge and for recording his plea on the

charge, his counsel informed that the petitioner was abroad

for his job and the charge was heard and the plea was

recorded through the counsel on 15.06.2023. Now, when the

case was posted for evidence, the petitioner filed the present

application seeking exemption from personal appearance for

the trial. The same is rejected by the Asst. Sessions Judge.

Aggrieved by the same, this Crl.M.C. is filed.

4. Heard the learned counsel for the petitioner and the

learned Public Prosecutor.

5. Annexure-4 is the order by which the application for

exemption is rejected. The relevant portion of Annexure-4 is

extracted hereunder :

7. "I have carefully heard the rival submissions, and have gone through the records. Going by the allegations, petitioner is actively involved in the assault on the complainant. Now, the complainant is expected to appear before the Court for evidence and the date is proposed as 05/09/2023- Petitioner was under limited exemption, and he was supposed to attend the Court for the trial as and when demanded. However, despite directions, he is not turning up and now another application for permanent exemption is filed as the instant CMP. By the conduct of the petitioner in not attending the Court, despite direction, he had demonstrated that he is not amenable for any conditions. Therefore, if at all permanent exemption is granted on conditions, he is sure to ignore the same. Now, if the trial is proceeding in his absence, and if he is finally called upon to appear at the stage of the pronouncement of judgment, he may ignore that call. Therefore. I am not inclined to grant any permanent exemption.

8. Accordingly, this petition stands, dismissed, and the petitioner is directed to appear before the Court personally for the trial on 05/09/2023, and continuously thereafter."

6. A perusal of the above order would show that there

is nothing to interfere with the above order. But, the counsel

for the petitioner submitted that he is working abroad and the

income received from his job is the only livelihood and he will

not dispute the identity of the case either at the trial stage or if

any appeal or other proceedings are filed in connection with

this case. If such an undertaking is given by the petitioner

before the trial court, I think the court below can exempt the

petitioner from personal appearance during the trial stage.

The warrant, if any issued to the petitioner can be recalled.

But, when the case is posted for judgment, the petitioner shall

appear before the trial court. For allowing the exemption

petition, the petitioner shall file an affidavit before the trial

court to the effect that he will not dispute his identity in the

case during the trial or at any stage of the case. If such an

affidavit is filed, the trial court will reconsider the matter

afresh. To facilitate the trial court to reconsider the matter,

Annexure-4 can be set aside.

Therefore, this Crl.M.C. is disposed of with the following

directions :

1) Annexure-4 is set aside.

2) The petitioner will file an affidavit before the trial court

stating that he will not dispute his identity in the case

during the trial or at any stage of the case, within three

weeks from the date of receipt of a certified copy of this

order.

3) If such an affidavit is filed, the trial court will reconsider

CMP No. 246/2022 and pass appropriate orders granting

exemption with a rider that the petitioner will appear on

the date on which the case is posted for judgment.

4) If any application is filed for recalling the warrant already

issued through the counsel of the petitioner, the trial

court will recall the warrant.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF CRL.MC 8736/2023

PETITIONER ANNEXURES

Annexure 1 TRUE COPY OF THE CHARGE IN FIR NO.

848/2015 OF CHAVARA POLICE STATION DATED 30.1.2016.

Annexure 2 TRUE COPY OF THE ORDER IN CRI. M.P. NO.

246/2022 IN SC NO. 1332/2021 ON THE FILE OF ASSISTANT SESSON JUDGES COURT, KARUNAGAPPALLY DATED 8.2.2023.

Annexure 3 TRUE COPY OF THE EXEMPTION AS CRL. M.P.

NO. 826/2023 FILED IN SC NO. 1332/2021 BY THE PETITIONER BEFORE THE ASSISTANT SESSON JUDGES COURT, KARUNAGAPPALLY DATED 16.8.2023.

Annexure 4 TRUE COPY OF THE ORDER IN CRL.M.P. NO.

246/2022 IN SC NO. 1332/2021 ON THE FILE OF ASSISTANT SESSON JUDGES COURT, KARUNAGAPPALLY DATED 18.8.2023.