Raveendran v. Shahul Hameed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937 CRL.A.No. 19 of 2004 ( ) ------------------------- AGAINST THE ORDER IN Crl.L.P. 550/2003 of HIGH COURT OF KERALA DATED 21-11-2003 AGAINST THE ORDER IN ST 4334/1999 of J.M.F.C., KODUNGALLUR DATED 2703-2003 APPELLANT(S)/COMPLAINANT: ------------------------ RAVEENDRAN, S/O. VELU, THUNDIYIL HOUSE, PALLIPPURAM VILLAGE, CHERAI DESOM,, PARAVOOR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S)/ACCUSED: ---------------------- SHAHUL HAMEED S/O. PAITHATPADI MUHAMMED S.N.PURAM VILLAGE, ANJANGADI DESOM,, P.VEMBALLUR P.O., KODUNGALLUR TALUK,, THRISSUR DISTRICT. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.D.RAJAN, J ......................................... Crl.A.19 of 2004 ....................................... Dated 26[th] February, 2016 ## JUDGMENT This appeal is preferred by the accused against the order in S.T.4334 of 1999 of Judicial First Class Magistrate, Kodungalloor by the complainant. He filed the above complaint under Section 138 of N.I.Act against the first respondent. The case was posted for hearing on 27.3.2003 and on that day, appellant was absent and the application filed on behalf of the appellant was dismissed. The accused was acquitted under Section 256 Cr.P.C. Being aggrieved by that, the complainant preferred this appeal. 2. The learned counsel appearing for the appellant contended that appellant was laid up and he could not appear on the particular date of posting. He represented the matter through the counsel which was not considered by the learned Magistrate. There was no deliberate laches from the side of the appellant and he prays to give an opportunity to prosecute the matter in the trial court. cr.a.19 of 2004 2 3. There was no appearance from the side of the first respondent even after receipt of notice. I heard the learned Public Prosecutor. 4. Section 256 of the Code reads as follows:- “Non-appearance or death of complainant.-(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” cr.a.19 of 2004 3 5. What is seen under Section 256 of the Code of Criminal Procedure is that a judicial discretion has been granted to the Magistrate to adjourn the case to another day for hearing when the complainant is absent on that date. The discretion provided shows that it should be exercised very cautiously. The allegation of the appellant is that he was laid up and could not appear before Court, but, no medical certificate has been produced in the trial Court to substantiate that point. I have noticed the order of the trial Court, in which it is stated that on 27.03.2003, complainant was absent. On that day, the accused was present or not is not mentioned in the order, but the application of the complainant was rejected and acquitted the accused. The appellant contended that his absence was not intentional and there was no direction for his personal appearance on that day. However his counsel represented the matter before court, ignoring the representation, the learned Magistrate dismissed the complaint. 6. In a complaint cases, the Magistrate should not cr.a.19 of 2004 4 dismiss the complaint and acquit the accused by calling the case immediately. Where the case is fixed for appearance of both parties, the complainant is represented by lawyer, rejection of the application of the complainant's lawyer without recording the reason is illegal. In such situation, Court should give strict direction for his presence and set the law in motion direct the complainant to appear before Court in person on a particular date for the enquiry. If after giving such opportunity the complainant remains absent and not obey the directions issued by the Court, dismissal of the complaint under such circumstances is proper. Otherwise if there is sufficient reason for his absence an order passed against him in his absence is illegal which will vitally affect him. ## 7. Apex Court in _**Associated Cement Co.Ltd**_ v. _**Keshavanand**_ [1998 (1) SCC 687] held as follows: “Reading Section 247 of the Criminal Procedure Code, 1898 (Section 256 of new Code) in its entirety would reveal that two constraints are cr.a.19 of 2004 5 imposed on the court for exercising the power under the section. The 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. The 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 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. cr.a.19 of 2004 6 In the result, the order of the Judicial First Class Magistrate Court, Kodungallur dated 27.3.2003 in S.T.4334 of 1999 is set aside and the matter is remitted to the learned Judicial First Class Magistrate, Kodungallur for fresh consideration. Parties are directed to appear in the trial Court forthwith. P.D.RAJAN, JUDGE lgk cr.a.19 of 2004 7 P.D.RAJAN, J CRL.A.19 OF 2004 JUDGMENT 26.2.2016