IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY WEDNESDAY, THE 17TH JANUARY 2007 / 27TH PAUSHA 1928 CRL.A.No. 723 of 1998 --------------------- CC.86/1997 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT/COMPLAINANT: --------------------- V.T. CHANDRAHASAN, VALLIKKATTU HOUSE, VAZHOOR P.O., KOTTAYAM BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENTS/ACCUSED: --------------------- 1. APPUKUTTAN, PLATHANATHU, POOVANTHANATH P.O., KOTTAYAM 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI K.C.SANTHOSH KUMAR SRI.P.KURUVILLA JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, J. ---------------------------- Crl. Appeal No.723 of 1998 ---------------------------- Dated this the 17th day of January, 2007 Judgment This appeal is filed against acquittal of the accused under section 256 (1) of the Code of Criminal Procedure for the absence of the complainant on 4.6.1998. The proceedings would show that the complainant was regularly prosecuting the case. However, on one day, the complainant was absent after applying for time, but, the accused was acquitted for the absence of the complainant. Even though Magistrate's court has got power to acquit the accused for the absence of the complainant, if presence of the complainant is absolutely necessary, that power cannot be exercised arbitrarily or mechanically. In this case, complainant applied for time. He was prosecuting the case vigorously. The complaint cannot be dismissed for the absence of the complainant on one day and one more opportunity could have been given. 2. According to the counsel for the first respondent, the amount was paid and the matter was compromised, but, there is no evidence for the same. In the circumstances of the case, the impugned order is set aside and the matter is remanded to the court below Crl.A.No.723/98 2 without expressing any opinion regarding the merits of the case. Parties shall appear before the trial court on 5.3.2007. The trial court shall also give notice to the counsel for the accused appearing in that court. Appeal allowed by way of remand. J.B.KOSHY JUDGE vaa Crl.A.No.723/98 3 J.B. KOSHY, J. -------------------------- CRL.APPEAL No.723/98 -------------------------- Judgment Dated:17th January, 2007