IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2358 of 2006()
1. BASTIN SABU,
... Petitioner
2. V.K.SATHEESH,
Vs
1. SHAHUL HAMEED, S/O. ALI AHAMMED,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.SUMAN CHAKRAVARTHY
For Respondent :SRI.RAM MOHAN.G.
The Hon'ble MR. Justice R.BASANT
Dated :20/12/2006
O R D E R
R.BASANT, J.
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Crl.M.C.NO.2358 OF 2006
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Dated this the 20th day of December, 2006.
ORDER
The petitioners are the two accused in a prosecution
initiated, inter alia, under Section 326 read with Section 34
I.P.C. The crux of the allegations against them is that they, in
their capacity as Sub Inspector of Police and Police Constable,
intercepted a vehicle of the complainant and made demands for
illegal gratification. When that was not accepted, they allegedly
dragged the complainant to the police station and assaulted him.
Police conducted an investigation into the complaint of the
complainant. The complaint was referred. Thereafter a protest
complaint was filed by the respondent/complainant. The learned
Magistrate took cognizance of the offences alleged against the
petitioners. The petitioners appeared before the learned
Magistrate. The matter underwent a number of adjournments.
No evidence was adduced for various reasons. Ultimately since
the respondent/complainant was not present on a final date of
posting, the learned Magistrate proceeded to pass an order
under Section 245(2) Cr.P.C, discharging the accused on the
ground that the allegations are groundless.
Crl.M.C.NO.2358 OF 2006 2
2. The complainant took up the matter before the
learned Sessions Judge and the learned Sessions Judge by the
impugned order took the view that the complainant/revision
petitioner is entitled one further opportunity to substantiate the
allegations against the petitioners-police officials. In coming to
that conclusion, the revisional court which took note of the
nature of the allegations raised against the petitioners – of high
handed acts of physical torture by police officials charged with
the responsibility of upholding law and order with oblique
motives. It was hence that the revisional court indulgently
granted the respondent/complainant a further opportunity.
3. The learned counsel for the petitioners submits that
the revision petition was filed after lapse of a long period of time
and the learned Sessions Judge had unjustifiably condoned the
delay in filing the revision petition. That order condoning the
delay is not challenged in this proceedings and in these
circumstances, I do not find any merit in that contention.
4. The learned counsel for the petitioners submits that
the order passed by the Sessions Court in revision is liable to be
quashed by invoking the powers under Section 482 Cr.P.C.
Section 482 Cr.P.C is to be invoked sparingly and in exceptional
Crl.M.C.NO.2358 OF 2006 3
cases in aid of justice only. Compelling and satisfactory reasons
must be shown to exist to justify the prayer for invocation of such
powers. In the instant case, the complainant was absent. The
competent court, at the revisional stage, held that termination of
proceedings by invocation of the powers under Section 245(2)
Cr.P.C is not justified. I must alertly note that the absence of the
complainant, considering the nature of the allegations raised
cannot lead to termination of proceedings under Section 249
Cr.P.C. In any view of the matter, I am not persuaded to agree
that the order passed by the revisional court suffers from any
such vice or results in miscarriage of justice as to justify the
invocation of the powers under Section 482 Cr.P.C.
5. The learned counsel for the petitioners submits that
great prejudice, hardship and inconvenience would result if
personal appearance of the petitioners were insisted by the
learned Magistrate on all dates of posting. It is for the
petitioners to apply for exemption from such personal
appearance. I have no reason to assume that such an
application, if filed, will not be considered by the learned
Magistrate on merits and in accordance with law. I find no
reason why ritualistic insistence on the personal appearance of
Crl.M.C.NO.2358 OF 2006 4
the petitioners should be made in a case like the instant one. No
specific direction appears to be necessary. Suffice it to say that
the petitioners shall be at liberty to apply for exemption. The
learned Magistrate must pass appropriate orders on merits on
such application.
6. This Crl.M.C is, in these circumstances, dismissed
with the above observations.
R.BASANT
JUDGE
rtr/