High Court Kerala High Court

Maniamma vs State Of Kerala on 7 November, 2008

Kerala High Court
Maniamma vs State Of Kerala on 7 November, 2008
       

  

  

 
 
  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.
            ===========================
           Crl.R.P. NO.3588     OF 2008
            ===========================

      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.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006