IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1969 of 2006()
1. K. NOUSHAD, S/O. HAMMED,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. V. ABDUL RASHEED,
For Petitioner :SRI.C.K.PRASAD
For Respondent :SRI.P.SANJAY
The Hon'ble MR. Justice K.THANKAPPAN
Dated :01/08/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO.1969 OF 2006
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Dated this the 1st day of August, 2007
JUDGMENT
This appeal is filed against the judgment in S.T.C. No.2187 of 2004
on the file of the Judicial First Class Magistrate’s Court, Thalassery. By
the impugned judgment, the trial court acquitted the accused under Section
256 (1) Cr.P.C.
2. The impugned order would show that the accused – second
respondent herein was acquitted for the reason that the complainant –
appellant was not present before the court below on the date of posting of
the case for giving evidence. Though the dates of adjournments are
mentioned in the order, the order sheet produced by the appellant would
show that on the said dates of posting of the case, there was no sitting.
However, on certain days of posting, the appellant was absent, but his
absence was represented except on 23.7.2005, the date of the impugned
judgment. The order sheet would also show that the accused – second
respondent did not appear before the court below on summons and
CRL.APPEAL NO.1969/2006 2
coercive steps were taken against him and finally he was arrested on
16.12.2004 by issuing non-bailable warrant. Thereafter the case was
posted on two occasions for evidence, but there was no sitting on those
two days. The learned Magistrate found that the appellant was not
interested in prosecuting the case. The said finding is not correct. The
appellant had taken steps to produce the accused before the court below.
That apart, the impugned judgment would not show that the court below
could not proceed with the case only because of the absence of the
complainant.
3. The impugned judgment is not legally sustainable in the light of
the principles laid down by this Court in the decisions reported in Don
Bosco v. Partech Computers Ltd., 2005(2) K.L.T. 1003 and G.F.S. Chit
& Loans (P) Ltd. v. Rajesh, 2006(3) K.L.T. 825. In the above
judgments, this Court had categorically held that mechanical order under
Section 256(1) Cr.P.C. without applying judicial mind is illegal and not
justifiable. The Apex Court had also taken the same view in the decision
reported in Associated Cement Co. Ltd. v. Keshvanand, 1998(1) K.L.T.
179 (SC). In the above circumstances, this Court is of the view that the
impugned judgment is liable to be set aside.
CRL.APPEAL NO.1969/2006 3
4. It is seen that inspite of the acquittal of the accused due to the
absence of the appellant, there was a delay of 156 days in filing the
petition for special leave to appeal. Hence, the matter can be remanded
only on terms. The impugned judgment is accordingly set aside and the
matter is remanded to the trial court for fresh disposal from the stage at
which the impugned judgment was passed on condition that the appellant
pays an amount of Rs.3000/- as costs to the counsel appearing for the
second respondent within one month from the date of appearance before
the court below.
The Crl. Appeal is allowed by way of remand. The parties shall
appear before the court below on 7.9.2007.
(K.THANKAPPAN, JUDGE)
sp/
CRL.APPEAL NO.1969/2006 4