A.Mujeeb vs State Of Kerala on 25 July, 2007

Kerala High Court
A.Mujeeb vs State Of Kerala on 25 July, 2007




CRL A No. 616 of 2007()

                      ...  Petitioner


                       ...       Respondent


                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


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

Crl.A 616/2007 2

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


K. Thankappan,



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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.

Crl.A 616/2007    5

                         K. Thankappan,J.

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