Monday, February 16, 2015

No persnl apperance need 4 NRI to fight criminal TRIAL. Seek exemption, appear thru counsel, Kerala HC

A very good case for 1000s of NRIs who are trying to conduct their criminal cases without personal appearance i.e. thru their counsel.

 

Kerala HC clears out that, once the husband has appeared once and "...Inasmuch as there is no dispute regarding identity..."  the husband should file a petition before the learned magistrate seeking exemption from appearance and the learned magistrate SHOULD PASS ORDERS !!

 

 

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                   Sequence of events 

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* NRI husband charged with 498a appears initially and gets bail

* then he wishes to proceed abroad and let the trial continue (exempt  from personal appearance !!)

* the magistrate has returned the application WITHOUT passing an orders

* HC gives a good piece of advice to the Magistrate and asks the petitioner to file another application with the magistrate to seek exemption of appearance 

* HC says magistrate should pass orders in such cases !!

* HC also addres "... I find merit in the submission of the learned counsel for the petitioner that ritualistic insistence on personal appearance of the petitioner is not necessary in the facts and circumstances of this case...."

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

 

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CASE FROM INDIANKANOON SITE 

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Kerala High Court

 

Sreekumaran Nair vs State Of Kerala on 25 June, 2008

 

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 2392 of 2008()

 

1. SREEKUMARAN NAIR ... Petitioner

 

Vs

 

1. STATE OF KERALA ... Respondent

 

For Petitioner :SRI.M.RAJAGOPALAN NAIR

For Respondent : No Appearance

 

The Hon'ble MR. Justice R.BASANT

 

Dated :25/06/2008

O R D E R R. BASANT, J.

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Crl.M.C. No. 2392 of 2008

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Dated this the 25th day of June, 2008

ORDER

 

The petitioner faces indictment in a prosecution for the offence punishable under Sec.498A of the IPC. The petitioner has entered appearance. He has been enlarged on bail. His plea has already been recorded. There is no dispute regarding identity. The petitioner is unable to appear in person and take part in the trial. Inasmuch as there is no dispute regarding identity, the petitioner wants the trial to be conducted in his absence with his counsel representing him. He is employed abroad. He has to proceed to his place of employment abroad. He does not want the trial to be held up on that count. He therefore instructed his counsel to file a petition to exempt the petitioner from personal appearance. According to the petitioner, Annexure-I dated 15/5/08 was filed before the learned Additional Chief Judicial Magistrate, Trivandrum. But the learned C.J.M. did not pass any orders in the application and did allegedly return the petition to the counsel.

 

2. I cannot assume that such state of affairs did occur. When a party/counsel files an application, the Magistrate is bound to adopt one of the following courses i.e.: (i) return the application to cure the defects; (ii) dismiss the application in limine; or (iii) dispose of the same on merits. In all the three events, reasons must be shown by the learned Magistrate for return/instant dismissal/disposal on merits.

 

3. I do not expect any counsel to take back such an application filed in court without any orders. I am, in these circumstances, satisfied that this Crl.M.C. can be dismissed with the observation that the petitioner can file such application afresh (if it has already been once presented and taken back) and claim an order on merits. Needless to say, the learned Magistrate must pass appropriate orders on merits. I find merit in the submission of the learned counsel for the petitioner that ritualistic insistence on personal appearance of the petitioner is not necessary in the facts and circumstances of this case. The learned Magistrate shall consider the petition on merits and pass appropriate orders.

 

4. This Crl.M.C. is, in these circumstances, dismissed with the above observations.

 

5. Hand over a copy of this order to the learned counsel for the petitioner.

 

Sd/-

 

(R. BASANT, JUDGE)

 

Nan/

//true copy//

P.S. to Judge


PDF uploaded to : http://1drv.ms/1vOZYOV


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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist