IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.Rev.Pet.No. 1986 of 2009() -------------------------------------------- CC.NO.844/2003 OF THE MUNSIFF MAGISTRATE COURT, PARAVUR .................... REVN. PETITIONER/ COMPLAINANT: --------------------------------------------------- EDWARD RAJA S/O.RAMALINGAM NADAR, SHOLAY HOUSE, KOTTAPPURAM, PARAVUR VILLAGE, KOLLAM,. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSEUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. XAVIER, CIRCLE INSPECTOR OF POLICE CRIME BRANCH, KOZHIKODE. ADV. DR.K.P.SATHEESAN FOR R2 SRI.K.K.GOPINATHAN NAIR FOR R2 SRI.M.R.JAYAPRASAD FOR R2 SRI.P.MOHANDAS (ERNAKULAM) FOR R2 SRI.MATHEW SUNNY FOR R2 SRI. JAYAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1986 of 2009 ORDER ON CRL.M.A. NO.6005/2009 IN CRRP NO.1986/2009 DISMISSED SD/- 18/9/2009 P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.A. TO JUDGE skj P.S.GOPINATHAN, J. ------------------------------------- Crl.R.P.No.1986 of 2009 -------------------------------------- Dated this the 18th day of September, 2009 ORDER The revision petitioner is the complainant in C.C.No.844/2003 on the file of the Munsiff Magistrate, Paravur. The revision petitioner prosecuted the second respondent who was the then Circle Inspector of Police, Crime Branch, Kozhikode alleging offence under section 324, 326, 342 and 352 I.P.C. The complaint was filed on 18/11/1999. After an enquiry stretching up to 21/8/2003 cognizance was taken for offence under section 325 & 342 I.P.C. In the meanwhile the case was adjourned on 27 occasions. Though process was issued the second respondent didn’t appear. After taking coercive steps, on 3/1/2006, the second respondent surrendered and was released on bail. Though the revision petitioner was ready on various dates, there was no progress. Ultimately, on 2/5/2009 by the order impugned the second respondent was discharged under section 245 (2) of the Code of Criminal Procedure. Assailing the legality, Crl.R.P.No.1986 of 2009 2 correctness and propriety of that order, this revision petition was preferred. 2. The relevant portion of the impugned order in paragraph 4 & 5 reads as follows:- “The case was posted for evidence since 06-05-06 with specific orders of no further time. It is also specifically directed the complainant to be present for giving evidence. But he did not turn up on 07-07-07, 05-10-07, 11-01-08, 22-05-08, 29-12-08, 12-03-09. Specific directions were given that he shall be present for evidence. But he did not act in a manner to give evidence and sought for adjournment. Lastily he applied for settling the issue. But it was not settled. On 30-04-04 he was again directed to be present with 'no further Time' order. But on 02-05-09 he adopted the same course of delaying the proceeding by not appearing before court. This makes it amply proved that he is purposefully acting to delay the proceedings and keeping on pending this case for reasons best known to him. It is a case of 2003 which cannot be carried on further without taking evidence of the complainant. The act of the complainant prima facie appears not Crl.R.P.No.1986 of 2009 3 condusive for the further conducting of the case. He not only give evidence by examining himself, but also did not adduce any other evidence to substantiate his case. This makes no option other than to find the allegations put forward in the complaint groundless entitling the accused to get a discharge u/s.245(2)Cr.P.C. Accordingly I do so. Hence the complaint is dismissed and the accused is discharged u/s.245(2)Cr.P.C.” What is stated in the above order impugned is contrary to truth. In paragraph 4 of the impugned order 6 specific instances of absence from 6/5/06 is mentioned. One date is 11/1/08. A perusal of the order sheet would show that on that day the revision petitioner was present. 2nd respondent was absent. The case was adjourned without any reason, presumably because of the absence of the 2nd respondent. Even then the revision petitioner was found fault with. 3. For a correct appraisal, it would be appropriate to read section 245 of the Code of Criminal Procedure. “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 Crl.R.P.No.1986 of 2009 4 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.” 4. Going by section 245 of the Code of the Criminal Procedure and the order impugned, I find that the order impugned is not justified. The first and primary reason is that the finding of the learned magistrate that the charge is groundless is only for the reason that there is failure to adduce evidence and not upon referring to the pleadings or evidence taken in the case. Much less there is no reason stated in the order impugned for arriving a conclusion that charge is groundless. So the finding that charge is groundless is unsustainable and liable to be interfered. The main reason that was taken is that the case was posted on various occasions with specific orders from 6/5/06 with no further time. But, the revision petitioner didn’t turn up. The failure to turn up on a day posted for evidence would not amount to a reason to conclude that charge is groundless. 5. Having gone through the order sheet it is seen that Crl.R.P.No.1986 of 2009 5 in between the date of filing of the complaint and the date of disposal, the case was posted on 71 occasions. After 6/5/06, on a dozen occasions the revision petitioner was present but the case was adjourned without assigning any reason. It is pertinent to note that on all these occasions the second respondent was absent. On certain occasions, there was no application for adjournment or to condone the absence also. Such being the procedure adopted and the proceedings before the trial court the revision petitioner cannot be found fault with for having the case adjourned on various occasions. In fact, the prosecution of the case turned against the revision petitioner as a persecution for he having lodged a private complaint. The learned magistrate had given indiscriminate adjournment despite the fact that the revision petitioner was ready and ultimately the second respondent was discharged with the reasonings that the revision petitioner was not ready on various occasions. In fact, it appears that the indiscriminate adjournment by the trial court had a great contribution in delaying the disposal. It also appears that such adjournment dissuaded the revision petitioner from regularly appearing in all Crl.R.P.No.1986 of 2009 6 posting dates. Before finding fault with the revision petitioner the lower court should have taken note of all these circumstances. The lower court also should have taken note that there are serious allegations in the complaint. If the allegation is true revision petitioner sustained grievous hurt at the hands of the 2nd respondent. For the reason that on a few occasions the revision petitioner was absent, it couldn't be said that the allegations are groundless. The revision petitioner had been prosecuting the complaint for about a decade against a senior police officer. Prima facie, it appears to be a serious prosecution. Not only justice must be done, it must appear that justice was done. The case should have been disposed on merit rather than having a short cut method. 6. The learned counsel for the second respondent while supporting the order impugned brought my attention to the decision reported in [(Manmohan Malhotra Vs. Abdul Salam in 1994 (1) KLT 365) and (Nabaghan Malla and others Vs. Brundaban Malla (1989 Criminal Law Journal 381)]. Having gone through the above decisions I find that the ratio of the above decisions has no application to the case on hand. In Crl.R.P.No.1986 of 2009 7 Manmohan's case, in discharging the accused two reasons are stated. One reason is that the complainant was trying to delay the proceedings and thereby protracted the case. In this case though it was so mentioned in the impugned order actually it is wrong. On a dozen occasion the revision petitoner was present but the case was adjourned without assigning any reason. Stretching from the date of complaint on 18/11/99 till the date of disposal on 2/5/09, there were 72 postings. The second respondent was present only on one day when he surrendered to take bail while coercive steps for arrest was pending. After taking bail he didn't care to appear. But the case was got adjourned. It appears that the delay in disposal was caused by the 2nd respondent/accused. The case had to be adjourned on various occasions because of the absence of the 2nd respondent when the revision petitioner was ready. The second reason in that case is that the allegation in the complaint do not constitute the ingredients necessary for offence punishable under Section 420 of the I.P.C. In this case there is no such finding at all. On the other hand on a reading of the copy of the complaint which was produced as Annexure A1, I find that there Crl.R.P.No.1986 of 2009 8 are sufficient materials in the complaint justifying the prosecution. In Nabaghan Malla's case the discharge was upheld for the reason that the complainant himself committed default and not bothered to appear in court, despite an opportunity given to produce and examine the witnesses. As I mentioned earlier, in this case there is no such circumstance. Hence the ratio of the decisions cited by second respondent has no application to the case on hand. 7. The order impugned is erroneous by facts and contrary to the procedure provided under section 245 of the Code of the Criminal Procedure. Hence, I find that the revision petition succeeds. The order impugned is set aside. The parties are directed to appear before the magistrate on 22/10/2009. Forward of the copy of this order forthwith. The learned magistrate shall post the case day to day and dispose the same at the earliest. P.S.GOPINATHAN, JUDGE skj.