Allowed

Benny Mathew v. State of Kerala

Kerala HC17 Jul 2024Crl.MC/6261/2023

Case brief

AI extract

What is this about?

The Court allowed a criminal miscellaneous petition under Section 482 Cr.P.C. to set aside an order dismissing an application for exemption from personal appearance. The petitioner, residing in the USA, sought to appear only when necessary; the Court directed him to appear within 75 days and clarified that lawyer's appearances suffice for other purposes.

What did the court decide?

The impugned order was set aside; petitioner directed to appear within 75 days; lawyer's appearance deemed sufficient for general trial purposes.

Benny Mathew Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2024)

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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 A. BADHARUDEEN

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WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946

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CRL.MC NO. 6261 OF 2023

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TO QUASH ANNEXURE-AR ORDER DATED 05.05.2023 IN C.M.P. NO.3772/2022 IN

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C.C. NO.331 OF 2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,

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KOTHAMANGALAM

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PETITIONER/ACCUSED NO.1:

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BENNY MATHEW
AGED 44 YEARS
SON OF M.C.MATHAI, MARACHERYPUTHETH HOUSE,
NELLIAMATTOM P.O, KOTHAMANGALAM TALUK, PIN - 686693
BY ADV PEEYUS A.KOTTAM

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RESPONDENTS/STATE:

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

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2SUB INSPECTOR OF POLICE
OONNUKAL POLICE STATION KOCHI - MADURAI - DHANUSHKODI
ROAD, OONUKAL, KERALA, PIN - 686693
BY ADVS.
PUBLIC PROSECUTOR
GIGIMON
TOBIAS TOGI MATHEW
PP - M P PRASANTH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
17.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C. No. 6261 of 2023

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ORDER

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Dated this the 17 th day of July, 2024

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This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to set aside Annexure.A4 order dated 05.05.2023 in C.M.P. No.3772/2022 in C.C. No.331/2021 on the files of the Judicial First Class Magistrate Court-II, Kothamangalam and to dispense with the personal appearance of the 1^st accused/petitioner before the trial court.

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Heard the learned counsel for the petitioner, the learned counsel appearing for the defacto complainant and the learned Public Prosecutor. Perused the impugned order and relevant materials available.

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In this matter, the prosecution allegation is that, after suppressing the first marriage, the petitioner herein married the defacto complainant as per Christian religious rites and while the defacto complainant was residing in the matrimonial house, the petitioner along with other accused tortured the defacto complainant mentally and physically stating that she is not good looking and the

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Crl.M.C. No. 6261 of 2023

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amount of dowry received was worthless. On this premise, the prosecution alleges commission of offences punishable under Sections 494, 495, 498(A), 323, 120B read with 34 of Indian Penal Code.

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The learned counsel for the petitioner would submit that the petitioner has been permanently residing in USA, therefore, he could not attend the court regularly. Accordingly, he filed petition under Section 317 of Cr.P.C. seeking permanent exemption from appearing before the Court. But, the learned Magistrate dismissed the same as per Annexure.A4 order. The learned counsel for the petitioner further submitted that, the petitioner has no grievance in conducting trial in his absence and in the presence of the counsel duly appointed by him and he is ready to appear before the trial court, when his presence is absolutely necessary to facilitate trial. Therefore, he pressed for the reliefs sought for.

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The learned counsel appearing for the defacto complainant would submit that the allegations are serious and the petitioner absconded during the investigation and he did not appear so far before the trial court, after

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Crl.M.C. No. 6261 of 2023

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issuance of summons. Therefore, deliberate attempt on the part of the petitioner to stall the trial, without appearing before the court, is foreseeable. Accordingly, Annexure.A4 order is justified and the same does not require any interference.

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The learned Public Prosecutor also read out paragraph No.7 of Annexure.A4 order, while supporting the same as against the contentions raised by the learned counsel for the petitioner.

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To be on the crux of this matter, according to the learned counsel for the petitioner, the petitioner has been permanently residing in USA and therefore, he could not appear before the court on all posting days. At the same time, the learned counsel for the petitioner submitted that the petitioner has no grievance in conducting trial in his absence and in the presence of the counsel duly appointed by him. It is also submitted that, the petitioner is ready to appear before the trial court when his presence is absolutely necessary to facilitate trial otherwise.

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Having considered the rival submissions, in order to

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Crl.M.C. No. 6261 of 2023

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facilitate trial of the matter, at the earliest, Annexure.A4 order stands set aside and this petition stands allowed as under:

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i. The petitioner is directed to appear before the trial court within a period of seventy five days from today and on such surrender, the trial court is at liberty to read out the charge and go for trial, after releasing the petitioner on bail, if he is not on bail.

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ii. When the court find it necessary to make appearance of the petitioner, for the purpose of identif i cation, 313 examination and on the date of delivering judgment or other days, the trial court is at liberty to order personal appearance of the petitioner, specif i cally for the said purposes.

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iii. All other purposes, personal appearance of the petitioner through his lawyer is deemed to be the appearance of the petitioner.

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iv. It is specif i cally made clear that, the petitioner shall not dispute his identity, in any manner, during trial.

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It is ordered further that, if the petitioner fails to appear before the trial court as directed, within seventy

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Crl.M.C. No. 6261 of 2023

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fve days, the trial court can proceed with coercive steps i

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and then, this order as such will stand automatically cancelled.

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Sd/-

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A. BADHARUDEEN JUDGE

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Crl.M.C. No. 6261 of 2023

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APPENDIX OF CRL.MC 6261/2023

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PETITIONER ANNEXURES :

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Annexure A1THE TRUE COPY OF THE FIR IN CRIME NO.
100/2021 OF OONNUKAL POLICE STATION
Annexure A2THE TRUE COPY OF THE FINAL CHARGE
SUBMITTED BY THE SUB INSPECTOR OF
POLICE, OONNUKAL POLICE STATION FORWARD
BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT -II KOTHAMANGALAM
Annexure A3THE TRUE COPY OF THE APPLICATION DATED
14.12.2022 SUBMITTED BY THE PETITIONER
BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT II, KOTHAMANGALAM AS
CMP 3772/2022 IN C.C.NO. 331/2021
Annexure A4TRUE COPY OF THE ORDER DATED 05.05.2023
AS CMP 3772/2022 IN C.C.NO. 331/2021 OF
JUDICIAL FIRST CLASS MAGISTRATE - II,
KOTHAMANGALAM

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Annexure A5THE TRUE COPY OF THE JUDGMENT IN
TRANSFER PETITION (CIVIL) NO. 1770/2021
(ANKITA BHATI VS. DEV RAJ SINGH BHATI)
DATED 13.07.2023

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RESPONDENTS’ ANNEXURES : NIL

Benny Mathew v. State of Kerala

Case brief

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Benny Mathew v. State of Kerala

Case brief

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