IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 318 of 2001()
1. V.PERUMAL SWAMI
... Petitioner
Vs
1. K.SAILENDRANATH & OTHERS
... Respondent
For Petitioner :SRI.V.G.ARUN
For Respondent :SRI.P.M.MOHAMED ALI
The Hon'ble MR. Justice K.THANKAPPAN
Dated :30/07/2007
O R D E R
K. THANKAPPAKN, J.
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CRL.A.NO.318 OF 2001
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Dated this the 30th day of July, 2007.
JUDGMENT
This appeal is filed against the order passed in
S.T.No.163/1998 on the file of the Chief Judicial Magistrate Court,
Kozhikode. By the impugned order, the trial court acquitted the
respondents/accused on the ground of absence of the
complainant/appellant before the court on 15.4.2000.
2. This Court heard the learned counsel appearing on either
side. The learned counsel appearing for the appellant submits that
the order impugned is not in accordance with the provisions of Section
256 of the Code of Criminal Procedure and not in conformity with
the dictum laid down by this Court in the judgments reported in
Don Bosco v. Partech Computers Ltd. (2005 (2) KLT 1003) and
K.M. Basheer v. C.B. Shaji. (2006 (1) KLD (Crl) 497. In the
above two judgments, this Court had specifically held that an order
under Section 256 shall not be passed only on the absence of the
complainant and the order shall be passed only after applying the
judicial mind of the court. Mechanical passing of an order without
CRL.A.NO.318/2001 2
judicial application of mind would cause unbearable hardships.
Apart from the above two judgments, the Apex Court had stated in
the judgment reported in Associated Cement Co. Ltd. v.
Keshvanand (1998 (1) KLT 179) that an order under Section 256
shall be passed only in such circumstances and not as a mechanical
disposal of the case. Paragraph 17 of that judgment reads as
follows:
17. Reading the section in its entirely 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 the 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
reasons. 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.
In the light of the principles laid down by this Court as well as
CRL.A.NO.318/2001 3
the Apex Court, this Court is of the view that the judgment under
appeal is not sustainable in law. Accordingly, the judgment is set
aside and the appeal is allowed. The trial court is directed to
reconsider the matter afresh as per law from the stage at which the
impugned order has been passed. The parties shall appear before the
court on 07.09.2007.
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.318/2001 4
K. THANKAPPAKN, J.
CRL.A.NO.318 OF 2001
JUDGMENT
30th day of July, 2007.