IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 616 of 2007()
1. A.MUJEEB, S/O ABDUL KARIM,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. JIFRY JALEEL, S/O P.M.JALEEL,
For Petitioner :SRI.LATHEESH SEBASTIAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :25/07/2007
O R D E R
K. Thankappan, J.
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Crl. A. No. 616 of 2007
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Dated this the 25th day of July, 2007
JUDGMENT
When an application for early hearing of the appeal came up for
orders, this Court heard the appeal itself and disposed of the same.
2. By the impugned order the 2nd respondent was acquitted by the
trial court under section 256(1) Code of Criminal Procedure. The learned
counsel for the appellant submits that the trial court had not complied with
the provisions of Code of Criminal Procedure while passing the impugned
order. The learned counsel for the appellant also submits that the order
under challenge is not in accordance with 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.).
3. A reading of the impugned order would show that the trial court
acquitted the 2nd respondent for the reason that in spite of specific
direction, the appellant absent. As per the principles laid down in Don
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Bosco V. Partech Computers Ltd. (Supra), when the presence of the
complainant 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
Crl.A 616/2007 3
not be a proper exercise of the power envisaged in the
section. The discretion must therefore, be exercised
judicially and fairly without impairing the cause of
administration of criminal justice.”
A reading of the impugned order would not show that the personal
attendance of the appellant is essential on that day.
4. In the above circumstances, 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 consider the matter afresh from the stage at which the order
impugned order has been passed.
The appeal is allowed as above.
The parties shall appear before the court below on 7-9-2007
The records of the case shall be forwarded to the trial court
forthwith.
K. Thankappan,
Judge.
mn
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It is relelvant to note that only because of the absence of the appellant, the
1st rspondent is dragged to this Court. Hence, it is only proper for this Court
to allow a reasonable costs to the 1st respondent. Therefore, the appellant is
directed to deposit before the court below an amount of Rs.2,000/- on or
before the date of posting of the case. If the amount is deposited, the 1st
respondent is permitted to withdraw the same.
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K. Thankappan,J.
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Crl.A.349/2003
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Judgment
29-3-2007
