Allowed

M.T. Sivakumar v. Central Bureau of Investigation

Kerala HC21 Nov 2023OP(Crl.)/894/2023

Case brief

AI extract

What is this about?

This criminal original petition sought to set aside an order requiring petitioner's appearance and to grant exemption under Section 317 CrPC. The High Court held personal presence not imperative, allowed the petition, set aside the impugned order, and dispensed with appearance subject to affidavit undertaking.

What did the court decide?

Original petition allowed; impugned order set aside; personal appearance of petitioner dispensed with during trial; petitioner to file affidavit undertaking conditions.

M.T. Sivakumar Vs Central Bureau of… — Civil Procedure and Limitation | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K. BABU

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TUESDAY, THE 21ST DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945
OP(CRL.) NO. 894 OF 2023

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AGAINST THE ORDER IN CMP NO.120/2023 in CC 20/2011 OF SPE/CBI
COURT, THIRUVANANTHAPURAM

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PETITIONER:

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M.T. SIVAKUMAR
AGED 78 YEARS
S/O MTN EZHUTHACHAN, M.T. HOUSE,
AYIKKADU, EDAPPAL, MALAPPURAM, PIN – 679576

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BY ADV K.RAJESH KANNAN

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RESPONDENT:

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CENTRAL BUREAU OF INVESTIGATION
CBI, SPE, ERNAKULAM, KOCHI REPRESENTED BY ITS
PROSECUTOR, PIN – 682030

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BY SRI.SREELAL N.WARRIER-STANDING COUNSEL FOR CBI

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(CRL.) NO. 894 OF 2023

K.BABU, J

O.P.(Crl.) No.894 of 2023

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Dated this the 21^st day of November, 2023

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J U D G M E N T

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The prayers in this Original Petition are as follows:

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“i) That an order be passed setting aside Exhibit P5 order dated 4.7.2023 in C.M.P.No.120/2023 in C.C.No.20/2011 of the Court of the Special Judge, SPE/CBI, Thiruvananthapuram.

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ii) Direct the Court of the Special Judge, SPE/CBI, Thiruvanathapuram to allow Exhibit P3 application dispensing with the attendance of the petitioner during the trial in C.C.No.20/2011.

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iii) Considering the exigencies and necessity for urgent consideration of the grievance voiced in this Original Petition (Crl.), production of English translations of documents in vernacular, may kindly be dispensed with for the time being;

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and

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iv) To grant such other reliefs as this Honourable Court deems fit and proper to grant in the facts and circumstances of the case.”

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The petitioner, a 78 year old man, is accused No.2 in C.C.

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No.20/2011 on the file of the Court of Special Judge, SPE/CBI,

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Thiruvananthapuram. The petitioner is a resident of Edappal in Malappuram District. The petitioner filed an application under Section 317 of Cr.P.C to dispense with his personal appearance during the trial.

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OP(CRL.) NO. 894 OF 2023

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The trial Court rejected the application inter alia on the ground that the petitioner is physically fit to travel from Malappuram.

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Heard the learned counsel for the petitioner and the learned Standing Counsel for the CBI.

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The learned counsel for the petitioner submitted that the presence of the petitioner during the course of trial is not at all required in view of the nature of the charges levelled against him. The learned counsel further submitted that the petitioner is prepared to undertake that he would not dispute his identity, a counsel on his behalf would be present in the Court and that he has no objection in taking evidence in his absence, treating the presence of the counsel as his presence in compliance with Section 317 of Cr.P.C.

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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.

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In M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels

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OP(CRL.) NO. 894 OF 20234

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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

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permanent exemption from personal appearance on the following conditions:-

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(1) The accused shall undertake that he would not dispute his identity as the particular accused in the case;

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(2) that a counsel on his behalf would be present in Court.

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(3) and that he has no objection in taking evidence in his absence treating the presence of the counsel as his presence.

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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

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to dispense with the personal attendance of the accused and proceed with the 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 his presence is imperatively needed or becomes indispensable.

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Having regard to the facts of this case, I am of the view that

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it is not imperative for the Court to insist the presence of the petitioner during the course of trial.

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OP(CRL.) NO. 894 OF 2023

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In the result,

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i) The Original Petition is allowed.

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ii) The impugned order stands set aside.

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iii) The personal appearance of the petitioner is dispensed

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with during the trial.

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iv) The petitioner shall file affidavit in tune with the

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directions in M/s.Bhaskar Industries Ltd v. Bhiwani Denim and

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Apparels Ltd. and Others (supra) through his counsel.

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v) The Court below is at liberty to require the

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presence of the petitioner, if required for any specific purpose.

Sd/-

K.BABU

JUDGE

OP(CRL.) NO. 894 OF 2023

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APPENDIX OF OP(CRL.) 894/2023

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PETITIONER EXHIBITS

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`Exhibit`	`P1` `TRUE COPY OF THE F.I.R. NO.BC 12(A)/2003` `DATED 21.5.2003 REGISTERED AT CBI/SPE,` `ERNAKULAM`
`Exhibit`	`P2` `TRUE COPY OF THE FINAL REPORT IN BC` `12(A)/2003 REGISTERED BY THE CBI/SPE,` `ERNAKULAM DATED 26.4.2004`
`Exhibit`	`P3` `TRUE COPY OF THE PETITION IN C.M.P.` `NO.120/2023 IN C.C. NO.20/2011 ON THE` `FILE OF COURT OF THE SPECIAL JUDGE,` `SPE/CBI, THIRUVANANTHAPURAM DATED` `30.6.2023`
`Exhibit`	`P4` `TRUE COPY OF MEDICAL CERTIFICATE DATED` `27.06.2023 ISSUED TO THE PETITIONER BY` `DR. M. ABDU, B.SC., M.B.B.S. (REG.` `NO.10164)`
`Exhibit`	`P5` `TRUE COPY OF THE ORDER DATED 4.7.2023 IN` `C.M.P. NO.120/2023 IN C.C. NO.20/2011 OF` `THE COURT OF THE SPECIAL JUDGE, SPE/CBI,` `THIRUVANANTHAPURAM`
`Exhibit`	`P6` `TRUE COPY OF THE MEDICAL CERTIFICATE` `DATED 11.11.2023 ISSUED FROM ELITE` `HOSPITAL, THRISSUR TO THE PETITIONER`

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RESPONDENTS EXHIBITS: NIL

M.T. Sivakumar v. Central Bureau of Investigation

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M.T. Sivakumar v. Central Bureau of Investigation

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