T P RAJU Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the first accused in CC 474/2008 on the file of Judicial First Class Magistrate, Thalassery. Contending that he is now employed in Pune and is not in a position to appear on all the posting days, he filed Annexure1 application under S.205 of Code of Criminal Procedure for exempting him from personal appearance at the time of recording his plea and also at the time of questioning under S.313 of Code of Criminal Procedure. Under Annexure2 order, learned Magistrate dismissed the petition holding that the decisions relied on by the petitioner are not applicable as they are in respect of summons case and as the case is being tried as a warrant case exemption cannot be granted and after framing of charge the prayer could be considered. This petition is filed under S.482 of Code of Criminal Procedure to quash Annexure2 order and to grant the permission is sought for.

(2.) Learned counsel appearing for petitioner and learned Public Prosecutor were heard.

(3.) Sub-s.1 of S.205 of Code of Criminal Procedure provides that whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. Sub-s.2 enables the Magistrate at any stage of the proceedings to direct the personal attendance of the accused, if necessary, in spite of the permission granted under sub-s.1. Case of the petitioner is that he is working in Pune and insistence of his presence on each posting day would cause irreparable loss to him. S.205 enables the Magistrate at his discretion to exempt the presence of the accused at the time of trial. True it is the discretion of the Magistrate to grant exemption. But the discretion is to be exercised considering not only the convenience of the prosecution but also the difficulties expressed by the accused. For the purpose of recording the plea of the accused, under S.246(2) of Code of Criminal Procedure, charge shall be read and explained to the accused and he shall be asked whether he pleads guilty or has any defence. Similarly, S.313 of Code of Criminal Procedure provides that Court may at any stage without previously warning the accused put such question to him as the Court considers necessary and shall after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. So also S.317(c) of Code of Criminal Procedure, Magistrate for reasons to be recorded can dispense with the attendance of the accused. Hence in spite of the mandates under S.273 of Code of Criminal Procedure that all evidence at the time of trial is to be taken in the presence of the accused, exemption can be granted in appropriate cases.