IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 2027 of 2006()
1. R.NADARAJAN,
... Petitioner
Vs
1. PRADEEP KUMAR K.,
... Respondent
For Petitioner :SRI.T.RAJASEKHARAN NAIR
For Respondent :SRI.THIRUMALA P.K.MANI
The Hon'ble MR. Justice K.THANKAPPAN
Dated :03/07/2007
O R D E R
K. Thankappan, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl.A. No. 2027 of 2006
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 3rd day of July, 2007
JUDGMENT
The appeal is filed by the complainant against the acquittal order
passed in C.C.No.234/2005 on the file of the Judicial Magistrate of the First
Class-V, Neyyattinkara. In the order it is stated that the appellant absent for
the last four postings and the case was posted for adducing evidence in all
the postings. The learned counsel for the appellant submits that the case was
originally filed before the Munsiff-Magistrate Court-II and as the Presiding
Officer was on long leave, the case was shifted to the Judicial Magistrate of
the First Class -VI. It is submitted that non-appearance of the appellant was
mainly due to a mistake committed by the Clerk of the counsel appearing
before the court below in recording the correct court in which the case was
transferred. It is also submitted that the non-appearance of the appellant was
not willful laches or negligence on the part of the appellant and an
application was filed for excusing the absence of the appellant.
2. Considering the arguments of the learned counsel for the appellant
and considering the facts and circumstances of the case, this Court is of the
Crl.A.2027/06 2
view 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.). As
per the principles laid down in Don Bosco V. Partech Computers Ltd.
(Supra), when the presence of the complainant was quite unnecessary, 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
1998(1) KLT 179 (Supra) the Apex Court held that 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
Crl.A.2027/06 3
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
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.”
3. 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 as per law.
The appeal is allowed as above.
The parties shall appear before the court below on 18-8-2007
The records of the case shall be forwarded to the trial court
forthwith.
K. Thankappan,
Judge.
mn
Crl.A.2027/06 4
It is relevant to note that only because of the absence of the appellant, the
1st respondent 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.2027/06 5
K. Thankappan,J.
- - - - - - - - - - - - - - - -
Crl.A.349/2003
- - - - - - - - - - - - - - - -
Judgment
29-3-2007