[Cites 8, Cited by 0]
Kerala High Court
Jaimol Palooppallath Moosa vs State Of Kerala on 16 January, 2026
Author: K. Babu
Bench: K. Babu
2026:KER:3768
O.P.(Crl)No.31 of 2026 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
OP(CRL.) NO. 31 OF 2026
ST NO.3943 OF 2025 OF THE JUDICIAL MAGISTRATE OF
FIRST CLASS, TALIPARAMBA
PETITIONER/ACCUSED NO.:
JAIMOL PALOOPPALLATH MOOSA
AGED 49 YEARS
W/O JISAM PALLIPARAMBIL UMMER, 3A GRAND
MEADOWS APARTMENTS, VTJ ENCLAVE, KUNDANOOR,
VTC, MARADU P.O, ERNAKULAM, PROPRIETOR WHITE
BOWL CATER, MAVELIPURAM CHAKKALAPADAM ROAD,
KANAYANOOR, VAZHAKALA VILLAGE, THRIKKAKKARA,
ERNAKULAM., PIN - 682304
BY ADVS.
SHRI.SHINTO THOMAS
SRI.RAM VINAYAK
SHRI.MOHAMED ASLAM V.P.
SMT.SONA VIJAYAN K.
SMT.AYANA L BIJU
SHRI.ANANTHU R MURALI
RESPONDENTS/STATE/DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, PIN - 682031
2 BJOY K J
AGED 45 YEARS
2026:KER:3768
O.P.(Crl)No.31 of 2026 2
S/O JOSE, KUMMINITHOTTATHIL HOUSE, PULIKURUMBA
P.O., NADUVIL, KANNUR, PIN - 670582
BY ADV
SRI.N R SANGEETH RAJ PP
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
16.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2026:KER:3768
O.P.(Crl)No.31 of 2026 3
K.BABU, J.
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O.P.(Crl) No.31 of 2026
---------------------------------------------
Dated this the 16th day of January, 2026
JUDGMENT
The prayers in this Original Petition filed under Article 227 of
the Constitution of India are as follows:-
"i. To call for the records Annexure A5 proceedings
dated 15.01.2026 in S.T.No.3943/2025 pending before
the Judicial First Class Magistrate Court, Taliparamba
against Petitioner/ Accused No.1 and set aside the
same in the interest of justice.
ii. To issue such other writ, order, or direction as this
Hon'ble Court may deem fit and proper in the facts
and circumstances of the case."
2. In view of the nature of reliefs that I propose to grant
notice to respondent No.2 is dispensed with. The learned Public
Prosecutor takes notice for respondent No.1.
3. The petitioner is accused No.1 in S.T.No.3943/2025
pending before the Judicial First Class Magistrate Court,
Taliparamba. She is alleged to have committed the offence
punishable under Section 138 of the Negotiable Instruments Act,
1881.
4. The grievance of the petitioner is that the learned
Magistrate on 15.01.2026 issued Non-Bailable Warrant against the
2026:KER:3768
petitioner before issuing a bailable warrant. The contention of the
learned counsel for the petitioner is that, having regard to the
nature of the allegations, the learned Magistrate should not have
ordered Non-Bailable Warrant at the first instance. The learned
counsel for the petitioner relied on Inder Mohan Goswami and
Another. v. State of Uttaranchal and Others (AIR 2008 SCC 251) to
support his contention.
5. On 15.01.2026, the petitioner failed to appear before
the Court though summons was served on her. It is submitted that
the petitioner was incapacitated to appear before the Court as her
husband was hospitalised.
6. In Inder Mohan Goswami (supra), the Apex Court
observed thus:-
"In complaint cases, at the first instance, the court
should direct serving of the summons along with the
copy of the complaint. If the accused seem to be
avoiding the summons, the court, in the second instance
should issue bailable-warrant. In the third instance,
when the court is fully satisfied that the accused is
avoiding the courts proceeding intentionally, the
process of issuance of the non-bailable warrant should
be resorted to. Personal liberty is paramount, therefore,
we caution courts at the first and second instance to
refrain from issuing non-bailable warrants."
7. The learned counsel for the petitioner submitted that
the presence of the petitioner during the course of proceeding is
not at all required in view of the nature of the offence alleged
2026:KER:3768
against her. It is submitted that the petitioner is prepared to
undertake 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 in
compliance with Section 355 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short 'the BNSS')/ Section 317 Cr.P.C.
8. 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.
9. 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.
2026:KER:3768
(3) that he has no objection in taking the evidence in
his absence treating the presence of the counsel as
his presence.
10. This Court in Sarath v. State of Kerala [2017 (3) KLT 95]
held that pendency of non-bailable warrant cannot be a ground
for refusing the request under Section 205 of Cr.P.C.
11. 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.
12. Having regard to the facts of this case, I am of the view
that it is not imperative for the Court to insist the presence of the
petitioner during the course of trial.
13. The learned counsel for the petitioner submitted that
the petitioner will appear before the Court on 04.04.2026. The
petitioner seeks permanent exemption thereafter.
The Original Petition (Criminal) is disposed of as follows:
2026:KER:3768
(i) The Non-Bailable Warrant issued against the
petitioner is recalled.
(ii) The petitioner is granted permanent exemption
from appearance after her personal appearance on
04.04.2026 under Section 228 of BNSS/ Section
205 Cr.P.C. and to represent her by her counsel at
the time of trial.
(iii) 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.
Sd/-
K.BABU
JUDGE
VPK
2026:KER:3768
APPENDIX OF OP(CRL.) NO. 31 OF 2026
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE COMPLAINT FILED
BY RESPONDENT NO. 2 BEFORE THE
HONOURABLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, TALIPARAMBA, DATED
06.11.2025,
Annexure A2 THE TRUE COPY OF THE SUMMONS ISSUED
TO THE PETITIONER BY THE JUDICIAL
FIRST CLASS MAGISTRATE COURT,
TALIPARAMBA, DATED 19.11.2025,
Annexure A3 THE TRUE COPY OF THE MEDICAL
CERTIFICATE ISSUED BY RENAI MEDCITY
HOSPITAL, ERNAKULAM, DATED 18.08.2025
Annexure A4 THE TRUE COPY OF THE DISCHARGE
SUMMARY OF THE PETITIONER'S HUSBAND,
ISSUED BY MEDICAL TRUST HOSPITAL,
ERNAKULAM, DATED 14.01.2026
Annexure A5 THE TRUE COPY OF THE PROCEEDINGS OF
THE HON'BLE MAGISTRATE COURT AT
TALIPARAMBA, DATED IN ST NO 3943 OF
2025 DATED 15.01.2026
