Reshma M. v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **Crl.Rev.Pet.No.368 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CC 19/2017 DATED 17-04-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANNUR** ## **REVISION PETITIONER/S:** **RESHMA.M, AGED 34 YEARS W/O RAJENDRAN, MADATHIL HOUSE, KARIKKANKULAM, PAPPINISSERY, KANNUR - 670 561 BY ADVS. SRI.G.S.KRISHNAN KARTHA LIJIN THAMBAN RATHEESH KUMAR** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF**| |---|---| ||**POLICE, VALAPATTANAM POLICE STATION BY PUBLIC**| ||**PROSECUTOR, HIGH COURT OF KERALA- 6820031**| |**2**|**VIJAY K.V, AGED 38 YEARS**| ||**S/O. ACHUTHAN, ANCHAMPEEDIKA P.O, KALLIASSERY**| ||**CENTRAL, KANNUR-670331.**| |**3**|**ANIL KUMAR KARIYIL, AGED 41 YEARS, S/O.SARADA,**| ||**KAVINISSERY, CHERUKUNNU P.O, KANNUR-670 301.**| |**4**|**SUBEESH OTHAYOTH,AGED 33 YEARS, S/O. PADMANABHAN,**| ||**CHEKKEEL HOUSE, EDAKKEPPURAM, CHERUKUNNU P.O,**| ||**KANNUR-670301.**| ||**R2, R4 BY ADV. SRI.P.U.SHAILAJAN**| ||**R2, R4 BY ADV. SRI.M.SURESH KUMAR**| ||**R2, R4 BY ADV. SRI.V.SREEJITH (K/1398/2000)**| ||**R2, R4 BY ADV. SMT.D.N.NISHANI**| ||**R2, R4 BY ADV. SMT.VIDYA KURIAKOSE**| |**OTHER PRESENT**<br>**:**|| **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 368 of 2019 ================== Dated this the 27[th] day of August, 2019 **O R D E R** The prayers in the aforecaptioned Criminal Revision Petition filed under Secs. 397 and 401 of the Code of Criminal Procedure are as follows: _“..... to set aside order dated 17[th] day of April 2018 in C.C.No. 19/2017 passed by the Judicial First Class Magistrate-II, Kannur and issue any other order or direction as the case may be as this Hon'ble Court may deem fit and necessary in the interest of justice.”_ 2. Heard Sri.G.S.Krishnan Kartha, learned counsel appearing for the petitioner, Smt.Priya Shanavas, learned Prosecutor appearing for R-1 State of Kerala and Sri.P.U.Shailajan, learned counsel appearing for contesting respondents 2 to R-4. 3. The revision petitioner herein is the complainant and respondents 2 to 4 are the accused persons in Calendar Case, C.C.No. 19/2017 on the file of the Judicial First Class Magistrate's Court-II, Kannur, wherein the offences alleged are those under Secs. 143, 147, 323, 341, 354, 354B, 452 read with Sec. 149 of the I.P.C. The above complaint was posted for pre-charge evidence on 22.4.2017. According to the revision petitioner/complainant, for unavoidable reasons, she could not appear before the trial court on the previous postings on 22.4.2017, 29.4.2017, 20.10.2017 and 31.3.2018, and Crl.R.P.368/19 - : 3 :- thereafter, the case was posted to 17.4.2018 for pre-charge evidence. The complainant/revision petitioner submitted an application as Crl.M.P.No. 2295/2018 in the said Calendar Case, C.C.No. 19/2017 on the file of the Judicial First Class Magistrate's Court-II, Kannur praying to condone her absence on that day and the learned Magistrate has dismissed the said application to condone her absence as per the impugned order dated 17.4.2018 on Crl.M.P.No. 2295/2018 in C.C.No. 19/2017, which reads as follows: ## _“O R D E R_ _This is a petition filed by M.Govindankutty, Advocate for the complainant U/s.309 of Cr.P.C._ _Complainant absent. On several occasions, this court directed the complainant to appear. But she did not appear before the court and gave evidence. The specific directions were given to the complainant to appear on 22.4.2017, 29.4.2017, 20.10.2017, 31.3.2018 and on this day to appear and to give pre-charge evidence. But she never appeared. The cause shown for non appearance is not sufficient. Nothing has been produced by the complainant as a document to substantiate her contention of absence and it was for valid cause. Hence petition dismissed.”._ 4. In view of the dismissal of the application filed by the revision petitioner to condone her absence on 17.4.2018, as per the abovesaid order, the learned Magistrate has also passed the consequential impugned order dated 17.4.2018, ordering that, by invoking the powers under Sec. 245(2) of the Cr.P.C. all the accused persons stand discharged. The said impugned order discharging the accused persons (contesting respondents 2 to 4) as per order dated Crl.R.P.368/19 - : 4 :- ## 17.4.2018, in C.C.No. 19/2017, reads as follows: ## _“O R D E R_ _This is a Petition filed U/s. 200 of the Cr.P.C.._ _Complainant absent. All accused absent. Petition to condone the absence of the complainant dismissed. The case is a case of warrant trial. No pre-charge evidence adduced. Hence I find nothing on record to proceed against the accused._ _2. Hence I am of the view that by invoking Sec. 245(2) of the Code of Criminal Procedure 1973, all the accused can be discharged and accordingly I discharged all the accused U/s. 245(2) of Cr.P.C.”_ It is these impugned orders rendered on 17.4.2018 by the learned Magistrate that are under in this revisional proceedings. ## 5. Sec. 245 of the Cr.P.C. reads as follows: _“Sec.245:- When accused shall be discharged. - (1) If, upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him._ _(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”_ 6. According to the revision petitioner, she is a married lady, then aged about 34 years and that she was brutally attacked on 7.5.2013 at about 7 p.m. by the accused persons, when she was at home with her 8 year old minor daughter at a time when her husband was away and that when her husband reached home, she was taken to the District hospital, Kannur, and she was admitted as an inpatient in the hospital for 3 days and that the wound certificate dated 7.5.2013 Crl.R.P.368/19 - : 5 :- would show that she was hit with some object on upper arm and face, and hair was plucked and the accused had hit on her head, etc. That the petitioner had filed the abovesaid private criminal complaint along with the list of 9 witnesses and had also produced wound certificate before the court below along with the complaint. While she was taken to District hospital, on the way she had complained about the incident to the Police authorities of Valapattanam Police Station and the Police had neither registered FIR nor conducted any investigation and in spite of various requests, the Police authorities had consistently refused to take statement of the victim and to register crime. Thereafter, the petitioner had approached the Superintendent of Police concerned, who recorded her statement. Thereafter, the Police have registered FIR in Crime No.538/2013 of Valapattanam Police Station and since the Police have not properly investigated the crime, the petitioner was constrained to file the instant private criminal complaint before the learned Magistrate under Sec. 200 of the Cr.P.C. 7. According to the revision petitioner, the allegations against the accused persons are very serious and that the petitioner, who is a lady, was brutally attacked her in front of her 8 year old minor daughter and that after filing the private criminal complaint, Crl.R.P.368/19 - : 6 :- the learned Magistrate recorded the sworn statement of the complainant and the witnesses, Smt.Jiji and Smt. Vasumathi and on satisfaction of the prima facie case, the learned Magistrate had taken cognizance and had issued summons to the accused persons. That the accused persons (contesting respondent Nos.2 to 4) appeared before the court and after appearance of the accused persons, without examining any witnesses, at the pre-charge stage, the court has discharged the accused on 17.4.2018 consequent to the order passed by the learned Magistrate on the same day, rejecting the application filed by the petitioner to condone her absence on the day in question. According to the petitioner, the court below has not found that the charge is groundless and instead, the court below has invoked Sec. 245(2) for discharging the accused on the ground that the complainant is absent and hence the complainant has not adduced pre-charge evidence. Whereas the plea of the petitioner is that due to unavoidable reasons, she was not in a position to attend the court to adduce pre-charge evidence and that she has even filed a proper application to condone her absence on 17.4.2018, which was rejected on the ground that she had not personally appeared on the previous occasions and had sought repeated adjournments, etc. 8. The learned counsel for the petitioner has placed reliance Crl.R.P.368/19 - : 7 :- on various judicial precedents in the matter as in _**Yeduruparthi Kamakshamma, v. T.Taranadh & Ors.**_ [1980 Crl.L.J. NOC, 56 (AP)] _**Integrated Finance Co. Ltd. & Ors. v. P.G.Thomas & Ors.**_ [2013 KHC 4], _**Sk.Based Ali v. Sohorab Ali & Anr**_ . [1987 KHC 1510], _**Mathew Paily v. Prabhakaran**_ [1980 KHC 254], etc. to buttress her contention that the learned Magistrate committed an illegality in having discharged the accused by invoking the provisions of Sec. 245(2) of the Cr.P.C., without giving reasonable opportunity to the petitioner to adduce pre-charge evidence and that this has been so done in spite of the fact that the petitioner was then abroad and due to unavoidable reasons, she could not come to the court to give such pre-charge evidence. 9. Per contra, the learned Advocate appearing for contesting respondents 2 to 4 (accused persons) would submit that the only issue to be examined by this Court is as to whether there are sufficient grounds to condone the absence of the complainant on 17.4.2018 and as to whether the impugned action of the learned Magistrate in having dismissed the application to condone the complainant's absence on 17.4.2018 as per Crl.M.P.No.2295/2018 in C.C.No. 19/2017 is legally correct or wrong. According to the contesting respondents, previously the case was also posted for the said purpose Crl.R.P.368/19 - : 8 :- on 22.4.2017, 29.4.2017 and 20.10.2017 and thereafter that the learned Magistrate had liberally granted yet another adjournment and posted the case to 31.3.2018, in order to enable the revision petitioner (complainant) to give pre-charge evidence on 31.3.2018. Further, it is pointed out that the passport of the revision petitioner was current upto 16.4.2018 as can be seen from Anx. R-2 (c) order dated 19.6.2018 rendered by this Court in Crl.M.C.No.3754/2018 filed by the petitioner herein, wherein it has been clearly stated that her passport was valid for one year from 17.4.2017, ie., it was valid upto 16.4.2018. Hence it is pointed out that as on 31.3.2018, her passport was valid and nothing prevented her from using her passport and she could have easily travelled from the gulf country to Kerala and could have given pre-charge evidence before the learned Magistrate at least on 17.4.2018. That this is all the more so, as the case was repeatedly being adjourned at the instance of the revision petitioner (complainant) on various occasions as on 22.4.2017, 29.4.2017, 20.10.2017 and 31.3.2018. Therefore, she could have easily travelled from the gulf country and could have attended the court on 17.4.2018 to give her pre-charge evidence and therefore, the grounds stated in the impugned order dated 17.4.2018 on Crl.M.P.No. 2295/2018 in C.C.No. 19/2017, whereby the learned Magistrate has Crl.R.P.368/19 - : 9 :- rejected the revision petitioner/complainant's plea for condoning her absence on 17.4.2018, are legally correct and proper and the said order does not require any interference. Hence it is argued by the learned counsel for respondents 2 to 4 that as the basic order rendered by the learned Magistrate on 17.4.2018 dismissing the plea for condoning her absence is legally correct, the consequential order discharging the accused by virtue of the enabling powers conferred under Sec. 245(2) of the Cr.P.C. is also valid and correct. Further that the facts of the cases dealt with in various aforecited reported judgments by the petitioner are entirely distinct and different from the facts of the instant case. 10. It is contended by respondents 2 to 4 that the revision petitioner has no valid grounds to condone her absence on 27.4.2018 and that her case that her daughter was studying in UAE and that there was nobody to whom the daughter could have been entrusted, etc. is not correct and that no document has been produced to show that her daughter is studying in UAE and further that even if the revision petitioner's daughter was studying in UAE at the relevant time, the revision petitioner's husband was also there at UAE and that therefore she could have easily come over from UAE so as to attend the court on 17.4.2018 to give her pre-charge evidence as admittedly Crl.R.P.368/19 - : 10 :- her passport was valid till 16.4.2018. Further, it is also pointed out by contesting respondents 2 to 4 that the petitioner is a close relative of respondents 2 to 4 and that certain factual details are also given to show that the relationship the rival parties was strained one and that the petitioner is having animosity against the 2[nd] respondent, etc. 11. On the other hand, the petitioner would contend that on 29.12.2017, there was no court sitting and the case was adjourned to 29.3.2018 by notification and that 29.3.2018 happened to be an holiday and so the case was called on 31.3.2018 and then the court below had posted the case to 17.4.2018 for pre-charge evidence. Further that as can be seen from Anx. R-2 (c) order dated 19.6.2018 rendered by this Court on Crl.M.C.No. 3754/2018, the petitioner herein happened to be an accused in a case mentioned therein and she was granted permission by the competent Magistrate's court to go abroad and her passport was valid for one year from 17.4.2017. That she was then staying in UAE along with her husband and minor daughter aged 8 years. Her passport got expired on 16.4.2018. That as can be seen from Anx. R-2(c), she had filed an application (Crl.M.P.No. 1631/2018) in C.C.No. 1634/2013 before the Judicial First Class Magistrate's Court-I, Kannur, seeking return of her passport for renewal and by the order impugned therein, her Crl.R.P.368/19 - : 11 :- application was dismissed by the learned Magistrate. The said order dated 16.3.2018 in Crl.M.P.No. 1631/2018 in C.C.No.1634/2013 reads as follows: ## _**“ORDER**_ _This is a petition filed by the 1[st] accused for return of passport for the purpose of renewal._ _2. The Averments in the petition in brief are as follows: The daughter of petitioner is studying in 7[th] standard at Dubai and her examination commences in the 1[st] week of April. More over the presence of petitioner at Dubai is very much essential to look after her ailing brother. Earlier, the petitioner had moved this court for a permission for return passport and vide order dtd. 01-08-2016 she was permitted to go abroad for a period of 6 months and the period was extended for one year by Hon'ble High Court vide order in WP(C) 10264/2017 (C) dtd. 24.03.2017. On the strength of the said order the petitioner obtained the passport for 1 year and she is now continuing in Dubai. The validity of the passport expires on 24-03-2017. As the health condition of her brother is not improved she need to continue in Dubai. Therefore, the petitioner pray for permitting the petitioner to renew her passport._ _3. Learned APP on instruction opposed the application stating that if she is permitted to renew her passport, she will get absconded._ _4. This is a case of 2013. The trial is in the advanced stage. The 2[nd] accused who is none other than the husband of this petitioner is already absconding and he is reported to be in gulf. Case against him is split up. Being an old case this court is taking earnest effort to dispose of the case against the petitioner, at the earliest. In these circumstances, if the passport is renewed even for one year that will delay the trial. Therefore, I am not inclined to renew the passport._ _In the result, the petition lacks merit and hence dismissed.”_ That it was only after approaching this Court by filing Crl.M.C.No. 3754/2018, that she could get her expired passport renewed consequent to the intervention made by this Court as per Anx.R-2 (c) order dated 19.6.2018 in Crl.M.C.No. 3754/2018. That based on the intervention made by this Court, the Central Government authorities Crl.R.P.368/19 - : 12 :- had also then taken the stand that emergency travel documents will be issued to her so that she could come back to India, etc. 12. Further that the issue as to whether the petitioner has reasonable justification in having remained absent on postings prior to 17.4.2018 is not very relevant and germane in the present proceedings. Further that on 29.12.2017 there was no court sitting and the case was adjourned to 29.3.2018 by notification and that 29.3.2018 happened to be an holiday and it is only thereupon, that the case got posted to 31.3.2018. According to the petitioner, she could not come over to India on 17.4.2018 for the reason that her passport was expiring on 17.4.2018 and it is only after the intervention made by this Court in Anx. R-2 (c) order dated 19.6.2018 that even steps could be taken for renewing her passport. Further that at the relevant time, she was not at all in a position to come over to India so as to attend the court on 17.4.2018 for the simple reason that there was nobody else to look after her minor daughter. Further that the contention made by contesting respondents 2 to 4 that she could have entrusted her minor daughter to her husband in the gulf country and she could have come over to India, etc. is too far-fetched and that the said contention itself would show the animosity shown by contesting respondents 2 to 4 and that the difficulties of a woman Crl.R.P.368/19 - : 13 :- like the petitioner in making travel arrangements from the gulf country have not been appreciated by the court below concerned and that it is all the more so, because the petitioner was faced with a dilemma that her passport was getting expired on 17.4.2018. Further that her passport was already surrendered before the competent Magistrate court as stated in Anx. R-2 (c) and she had filed an application for return of the passport for its renewal, which was rejected by the court below concerned on 16.3.2018 as per order on Crl.M.P.No.1631/2018 in C.C.No. 1634/2013. Further that the said impugned order dated 16.3.2018 was interfered by this Court only as per Anx. R-2(c) order rendered subsequently on 19.6.2018. That in these circumstances, the petitioner was faced with the dilemma, whereby she was not in a position to come over to India, as her plea for return of the surrendered passport was not allowed by the competent court below concerned and it was rejected on 16.3.2018 and it is only after 19.6.2018 that the Central Government authorities were directed to issue emergency travel documents to enable her to travel to India as can be seen from Anx. R-2 (c). 13. After having heard both sides, this Court is of the considered view that in cases where the complainant is continuously Crl.R.P.368/19 - : 14 :- absent for a very long time without any valid reasons and does not care to adduce pre-charge evidence, then the discretion conferred under sub section (2) of Sec. 245 of the Cr.P.C. could be exercised in appropriate cases, as Sec.245 (2) Cr.P.C. clearly stipulates that nothing in Sec. 245 of the Cr.P.C. shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if for reasons to be recorded by such Magistrate, he considers the charge to be groundless. However, after hearing the learned Advocates appearing for the rival parties as well as the learned Prosecutor appearing for the State, this Court is of the considered view that the stand taken by the court below concerned in the impugned order dated 17.4.2018, wherein the said court has rejected the plea of the revision petitioner to condone her absence on 17.4.2018 is not legally correct or proper. True that the revision petitioner was not present before the court below on various occasions as stated in the impugned order. The issue as to whether the revision petitioner was fully justified in not being present before the court below on occasions prior to 17.4.2018 is not very relevant and germane as the court below concerned had already condoned her absence and adjourned the case. Further the petitioner has also pleaded that on 29.12.2017, there was no court sitting and the case Crl.R.P.368/19 - : 15 :- was adjourned to 29.3.2018 by notification and that 29.3.2018 happened to be an holiday and the case was called on 31.3.2018, on which day the case was again adjourned by the court to 17.4.2018, etc. Anx. R-2 (c) order has been produced by none other than contesting respondents 2 to 4 in their counter affidavit filed in this case. A reading of Anx. R-2 (c) order dated 19.6.2018 rendered by this Court in Crl.M.C.No. 3754/2018 filed by the petitioner herein would show that the validity of the passport of the petitioner herein was for the period from 17.4.2017, ie. upto 16.4.2018 and further that admittedly, the passport of the petitioner was already surrendered by her before the Judicial First Class Magistrate's Court-I, Kannur, in relation to certain cases, wherein she has been arrayed as accused about which mention is made in Anx. R-2 (c) order. Her request to return the passport for its renewal as it is expiring on 16.4.2018 was rejected by the court below concerned as per the impugned order rendered on 16.3.2018. Therefore, as on 16.3.2018, it was clear like the day light, that the court below concerned has even refused her plea to return back her passport to get it renewed so that she could not travel from gulf to India to attend the court on 17.4.2018. Further the crucial fact of the matter is that her passport was valid only upto 16.4.2018 (ie. one year from 17.4.2017). It is only consequent to the Crl.R.P.368/19 - : 16 :- intervention made by this Court on 19.6.2018 as per Anx. R-2 (c) order, that the Central Government authorities had agreed to issue emergency travel document to enable her to travel from gulf country to India. Therefore, it appears that at least after 16.3.2018 (date of the order passed by the learned Magistrate in rejecting her plea for return of the passport for its renewal) or at least after 31.3.2018, she was not even having the passport, as it was not returned by the court below concerned. Moreover, her passport was valid only upto 16.4.2018, whereas the case was posted to next day (viz., 17.4.2018). 14. In the light of these aspects, this Court has no hesitation to hold that the court below concerned should have exercised its discretion so as to adjourn the case to a future date in order to enable the petitioner take necessary legal measures to get back her surrendered passport so as to renew the same and then to travel to India, etc. Therefore, on this short ground, it is only to be held that the impugned order passed by the learned Magistrate in dismissing her plea to condone her absence on 17.4.2018 and the consequential order issued by the learned Magistrate on the same day (17.4.2018) discharging the accused under Sec.245(2) are thus clearly illegal improper and unreasonable. Accordingly, the impugned orders dated 17.4.2018 will stand set aside and the complaint in C.C.No. 19/2017 Crl.R.P.368/19 - : 17 :- will stand remitted to the Judicial First Class Magistrate's Court-II, Kannur for consideration afresh. 15. The parties will enter appearance through their respective Advocates before the learned Magistrate at 11 a.m. on 6.12.2019, upon which, after hearing both sides, the court below will fix a day to enable the revision petitioner/complainant to give pre-charge evidence after taking note of the due convenience of the parties and the revision petitioner will ensure that pre-charge evidence is adduced without any further delay and the learned Magistrate may thereafter proceed with the matter in accordance with law. With these observations and directions, the above revision petition stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE**