Roselind Francis vs K.Muraleedharan on 6 September, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 85 of 2003(C)


1. ROSELIND FRANCIS, W/O.FRANCIS FERNANDEZ,
                      ...  Petitioner

                        Vs



1. K.MURALEEDHARAN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.GEORGE VARGHESE (MANACHIRACKEL)

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :06/09/2007

 O R D E R
                                K. Thankappan, J.
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                             Crl.A. No. 85 of 2003
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                Dated this the 6th day of September, 2007


                                     JUDGMENT

When a petition for early posting of the appeal came up for orders,

this Court heard the appeal itself and and dispose of the same. Though

notice on the 1st respondent was served by affixture, there is no appearance

on behalf of the 1st respondent.

2. The appeal is filed by the complainant against the acquittal order

passed in C.C.No.31/2002 on the file of the Chief Judicial Magistrate of

Kollam. The 1st respondent was acquitted on the sole ground of the

absence of the petitioner. It is not discernible from the impugned order that

the attendance of the appellant is necessary. As per the principles laid

down by this Court in decisions reported in Don Bosco V. Partech

Computers Ltd. (2005(2) KLT 1003), G.F.S. Chits & Loans (P) Ltd. V.

Rajesh (2006(3) KLT 825) and a decision of the Apex Court reported in

Associated Cements Co. Ltd. V. Keshwanand (1998(1) KLT 179 (S.C.), the

impugned order is not sustainable. In Don Bosco V. Partech Computers

Ltd. (Supra), this Court held that when the presence of the complainant

Crl.A.85/2003 2

was quite unnecessary and the Magistrate could proceed with the case by

adjourning the same even if there was no representation from the counsel,

the Magistrate should have adjourned the case, particularly when steps

under section 82 and 83 of the Cr.P.C. were pending against the accused. In

G.F.S.Chits & Loans (P) Ltd. V. Rajesh (Supra) this Court held that the

courts should also bear-in-mind that unmerited, thoughtless disposal gives

wrong signal to the society, staking even public confidence in the system of

administration of justice. In paragraph 17 of 1998(1) KLT 179 (Supra) the

Apex Court held as follows:-

“17. Reading the section in its entirety would reveal
that two constraints are imposed on the court for
exercising the power under the Section. First is, if the
court thinks that in a situation it is proper to adjourn the
hearing then the magistrate shall not acquit the accused.
Second is, when the magistrate considers that personal
attendance of the complainant is not necessary on that
day the magistrate has the power to dispense with his
attendance and proceed with the case. When the court
notices that complainant is absent on a particular day
the court must consider whether personal attendance of
the complainant is essential on that day for the progress
of the case and also whether the situation does not
justify the case being adjourned to another date due to
any other reason. If the situation does not justify the
case being adjourned the court is free to dismiss the
complaint and acquit the accused. But if the presence of
the complainant on that day was quite unnecessary then
resorting to the step of axing down the complaint may
not be a proper exercise of the power envisaged in the
section. The discretion must therefore, be exercised

Crl.A.85/2003 3

judicially and fairly without impairing the cause of
administration of criminal justice.”

3. Considering the above principles laid down by this Court as well

as the Apex Court, this Court is of the view that the order under challenge

is liable to be set aside and the matter has to be remitted to the trial court for

fresh consideration. Ordered accordingly. The trial court is directed to

proceed with the case from the stage at which the impugned order has been

passed.

The appeal is allowed as above.

The appellant shall appear before the court below on 27-10-2005.

The trial court shall issue fresh notice to the 1st respondent.

The records of the case shall be forwarded to the trial court

forthwith.

K. Thankappan,
Judge.

mn

Crl.A.85/2003    4




                      K. Thankappan,J.
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                     Crl.A.No. 85/2003
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                            Judgment
                             6-9-2007