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Page 1 Wednesday, January 11, 2023

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2021 SCC OnLine Ker 10698

In the High Court of Kerala at Ernakulam

(BEFORE MARY JOSEPH, J.)

Sudha Guar … Petitioner/Accused;

Versus
State of Kerala, Represented by Public Prosecutor, High Court of
Kerala and Another … Respondents/State.
Crl.MC No. 4159 of 2021†
Decided on September 15, 2021
Advocates who appeared in this case:
By Advs. Gibi C. George
Latha Susan Cherian
By Senior Public Prosecutr Smt. T.V. Neema
The Order of the Court was delivered by
MARY JOSEPH, J.:— Petitioner is a permanent resident of New Delhi and she is an
accused in C.C. No. 1559/2019 on the files of Judicial First Class Magistrate Court,
Mattancherry (for short ‘the court below’). The second respondent is the complainant
in C.C. No. 1559/2019 and the offence alleged against her is one punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for short the ‘N.I. Act’). The
second respondent in the petition on hand is the brother in law of the petitioner.
2. C.C. No. 1559/2019 was posted before the court below on various dates and it
was being adjourned by notification during Covid-19 and ultimately to 01.09.2021 for
appearance of the petitioner. On 01.09.2021 the counsel for the petitioner filed
Annexure-3 application under Section 205 Cr.P.C. seeking for dispensation of her
personal appearance in view of the prevailing Covid-19 pandemic situation. In the
application it was further requested to permit the petitioner to appear through video
conference and seek bail. The grievance of the petitioner was that though Annexure-3
application was filed before the court below, order was not passed in that but, NBW
was issued by the court against her. According to her issuance of NBW during the
pandemic, without passing an order in the application filed by her seeking for
exemption is illegal. Therefore, the following reliefs are sought.
“i. Pass appropriate order directing the Judicial First Class Magistrate Court,
Mattancherry to recall the non bailable warrant issued against the petitioner in
C.C. No. 1559/2019.
ii. Pass appropriate order directing the Judicial First Class Magistrate Court,
Mattancherry to permit the petitioner to participate in the proceedings in C.C.
No. 1559/2019 through video conferencing.
iii. Pass appropriate order directing the Judicial First Class Magistrate Court,
Mattancherry to dispense personal appearance of the petitioner in C.C. No.
1559/2019.
iv. Pass such other appropriate reliefs which this Hon'ble Court deems just and
necessary.
v. Allow this Crl.M.C.”
3. Certified copy of the application filed under Section 205 Cr.P.C. is produced
alongwith the petition on hand. This Court noticed from the said application that it was
filed on 01.08.2021. The learned counsel for the petitioner made this Court convince
from the docket of the petition that it was filed in the month of September 2021 and
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from the endorsement made on it by the learned counsel that the copy of the
application was received by him on 01.09.2021. Therefore, according to him the date
noted as 01.08.2021 is only a mistake and the actual date of filing of the application is
01.09.2021.
4. This Court is also convinced from the docket of the application as well as the
endorsement of the counsel for the respondent that it was actually filed on
01.09.2021. It is found from Annexure-4, the daily status of the court below that on
01.09.2021 the complainant was present, he was represented and the accused was
absent and represented. It was also noted that Annexure-3 was dismissed and
directed to take steps to issue NBW against the accused. The case now stands posted
to 04.10.2021 and NBW is pending against the petitioner. According to the learned
counsel, the application moved under Section 205 Cr.P.C. was not considered by the
court below and orders have not been passed therein. Eventhough the word ‘rejected’
is noted in the daily status of the case on 01.09.2021, from the docket of the petition
filed under Section 205 Cr.P.C., it is evidenced that orders has not been passed by the
Magistrate therein. The grievance of the petitioner was that without considering the
application filed under Section 205 Cr.P.C. and passing of appropriate orders therein
that the court below has issued NBW against her. According to her till an order was
passed in the application, NBW issued shall not be executed.
5. The relief sought being of the above nature, notice to the 2nd respondent is
dispensed with. This Court has also noticed from the docket of the application filed
under Section 205 Cr.P.C. that an order has not been passed by the court below. If the
party approaches the court with an application seeking to exempt him/her from
personal appearance, the court below shall pass appropriate orders therein on merits
bearing in mind the prevalent Covid-19 pandemic situation. The specific case of the
petitioner was that she being a lady aged 51 years residing at New Delhi needs
somebody to accompany her to attend the court at Mattancherry. That being a genuine
requirement, the court below shall pass appropriate orders in CMP No. 607/2021 in
C.C. No. 1559/2019. Till the date on which the orders are passed, execution of NBW
issued shall be kept in abeyance.
6. With the above direction, Crl.M.C. is disposed of.
———
† Against CC No. 1559/2019 of Judicial First Class Magistrate Court, Mattancherry
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