The Kerala High Court on Friday was hearing a petition from a husband, seeking permission to return to his country of work while he was out on bail in a matrimonial matter. The high court observed that the right of the accused to carry on his occupation cannot be curtailed while ensuring the culmination of legal process.
The petition was filed by Arun Baby, who stated that he was employed as General Electrical Engineer in the UAE, and that the visa granted to him would expire on 15.07.2021. The petitioner urged the high court that it was necessary for him to return within the specified timeline.
The petitioner is the first accused in a case registered at Elavumthitta police station. The offences alleged against him are punishable under:
- Section 498A
- Section 506(i)
…of the Indian Penal Code.
While arguing for the petitioner, Advocate Manu Ramachandran mentioned that the Court of Session had not imposed any condition that he should obtain prior permission of the court to go abroad while granting bail. This petition was filed merely because the petitioner was a law abiding citizen and wanted to avoid difficulties in future.
Kerala High Court
The Court observed that although the general rule mandates that evidence be taken in the presence of the accused, evidence can be taken in his absence as long as his counsel is present in the court, provided the accused has been exempted from attendance.
The court further observed that the present trial can progress even in the absence of the accused, and that it is not essential for prosecution witnesses to identify him in the court as the offender. The court noted:
In the instant case, the offences alleged against the petitioner are punishable under Sections 498A and 506(i) of the Indian Penal Code. There will not be any need for the prosecution witnesses to identify him in the court as the offender. If the petitioner undertakes that he would appear before the trial court on all hearing dates as may be specifically directed by that court, he can be exempted from personal appearance before the court and he can be allowed to be represented through counsel and permission can be granted to him to leave the country for employment.
Thus, the husband has been exempted from personal appearance on the following conditions:
- He should file an affidavit in the concerned Magistrate’s Court that he would appear before that court as and when required by that court.
- He should engage a counsel to appear before the trial court
- The affidavit should also undertake that the counsel engaged by him would appear before the trial court on his behalf on each and every date of hearing
- The petitioner shall not object to the recording of the evidence in his absence
- No adjournment shall be asked for on his behalf
While allowing the petition, Justice R. Narayana Pisharadi also remarked,
If the Court is satisfied that, in the interests of justice, the personal attendance of an accused before it need not be insisted on, then court has the power to dispense with his attendance. If a court feels that insisting on the personal attendance of an accused in a case would be too harsh, the court can grant appropriate relief to him.
Pandemic has Paralysed Functioning of Lower Courts
Exercising their power under Section 482 of the India Penal Code, Justice Pisharadi said,
The petitioner had not moved the Magistrate’s Court concerned seeking appropriate relief. But, considering the fact that the regular functioning of the lower courts has been practically paralysed at many places in the State due to the pandemic Covid-19, thereby preventing access to justice by the citizens, in order to secure the ends of justice, appropriate relief can be granted to the petitioner by this Court by exercising the power under Section 482 of the Code.
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