IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3588 of 2008()
1. MANIAMMA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.A.AHZAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/11/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.3588 OF 2008
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Dated this the 7th day of November,2008
ORDER
Revision is filed by the de facto complainant
the injured in C.C.373/2001 on the file of Judicial
First Class Magistrate, Sasthamcotta challenging
the order of acquittal of the second respondent,
the accused in the case, under section 248(1) of
Code of Criminal Procedure.
2. Learned counsel appearing for petitioner
and second respondent were heard.
3. The order of acquittal shows that though
prosecution case was that second respondent
committed the offence under section 498A of IPC and
to prove the case ten witnesses were cited stating
that inspite of coercive steps appearance of
witnesses could not be secured and as is no
evidence to prove the guilt, second respondent was
acquitted.
4. The records of the courts below establish
CRRP3588/2008 2
that second respondent appeared and charge was
framed on 11.1.2002. After granting bail the case
was adjourned to 14.6.2002 to produce witness. It
was adjourned to 21.12.2002 and thereafter to
27.6.2003 and then to 18.10.2003. On that day
summons to Cws.1 to 3 were issued and case was
posted to 18.12.2003. On 18.12.2003 it was
adjourned by notification to 26.2.2004 and again
adjourned by notification to 2.6.2004. Proceedings
of 2.6.2004 reads:-
“Accused present. No
witnesses present. Bailable
warrant against Cws.1 to 7.
Posted to 25.8.2004.”
The records show that summons on Cws. 1 to 3 were
not served as directed on 18.10.2003 and the
summons were returned praying time for service.
Still without issuing further summons bailable
warrant was issued on 25.8.2004. The proceedings
of 25.8.2004 reads:-
“Accused present. Issue
CRRP3588/2008 3
summons to CW1 through
registered post. Posted
to 15.10.2004.”
Records establish that bailable warrants issued to
Cws.1 to 7 were returned stating that due to law
and order duty they could not be executed.
Learned Magistrate did not pursue that matter and
instead issued only summons to CW1 on 25.8.2004 by
registered post. On 15.10.2004 the case was
adjourned to 28.10.2004 as follows:-
"Accused present. No witness
present. Evidence closed.
Posted to 28.10.2004."
The registered cover which is available in the
records shows that it was returned to the court as
addressee not known much before 15.10.2004.
Without issuing further summons learned Magistrate
closed the evidence on 15.10.2004.
5. On 28.10.2004 the accused was absent.
Learned Magistrate reopened the evidence and issued
summons to Cws.4 to 10 and posted the case to
CRRP3588/2008 4
19.11.2004. On 19.11.2004 recording that no
witness was present bailable warrant was issued
against Cws.1 to 10 and posted the case to
22.12.2004. On 22.12.2004 the evidence was closed
as follows:-
"Accused present. No
witnesses present. Evidence
closed. Posted to
28.12.2004."
On 28.12.2004 it was adjourned by notification to
12.1.2005 on which day also it was adjourned as
accused absent. For hearing to 25.1.2005. On
25.1.2005 it was adjourned by notification to
30.3.2005 and on that day it was adjourned to the
next day. On that day the order of acquittal was
passed finding the accused not guilty. Summons to
Cws.4 to 10 were in fact returned to the court
without service stating that there was no
sufficient time to serve the summons. Non bailable
warrant issued to Cws. 4 to 10 on 19.11.2004 is
also seen returned back to the court stating that
CRRP3588/2008 5
because of law and order warrant could not be
issued.
6. It is absolutely clear form the records
that when the Magistrate acquitted the second
respondent under section 248(1) of Code of Criminal
Procedure learned Magistrate did not verify the
records to see whether the summons or warrant
issued to the prosecution witnesses were served or
executed. When summons were not served on the
accused and even the bailable warrant returned
back to the court without service stating that
because of law and order police could not serve
the summons or execute the warrant, Magistrate
should have directed service of summons on the
prosecution witnesses and only if inspite of the
service they did not appear, an order of acquittal
for want of evidence could have been passed. The
proceedings establish that learned Magistrate
illegally acquitted second respondent on 31.3.05.
The Criminal Revision Petition is allowed.
The order of acquittal is set aside. C.C.373/2001
CRRP3588/2008 6
is restored to file and remanded to Judicial First
Class Magistrate with a direction to issue summons
to the prosecution witnesses and dispose the case
in accordance with law. As the revision petitioner
is the first witness to be examined by the
prosecution, revision petitioner and second
respondent accused are directed to appear before
the Magistrate on 30.12.2008. Send back the
records.
Criminal Revision Petition is disposed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006