IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 Crl.MC.No. 157 of 2008() ----------------------------------- AGAINST THE ORDER DATED 31/07/2007 IN CMP.843/2005 IN CRRP.10/2005 of SESSIONS COURT, THALASSERY CC.1147/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... PETITIONER(S): REVISION PETITIONER/DEFACTO COMPLAINANT ------------------------------------------------------------------------------------------------- KUMARADAS, S/O SANKARAN, AGED 48 YEARS, RESIDING AT AYAMBARA, PERIYA AMSOM DESOM, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENT(S): RESPONDENTS/ACCUSED ----------------------------------------------------------------- 1. KAKKOPRAVAN KAMALAKSHAN, S/O KRISHNAN NAMBIAR, AGED 29 YEARS, NADUVIL AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.157 of 2008 ---------------------------------------------------- Dated this the 29th day of March, 2011 Order The defacto complainant in C.C.No.1147 of 1999 of J.F.C.M.Court, Taliparamba has filed this case challenging the impugned order passed by the learned Sessions Judge, Thalassery. The petitioner contends that he was the defacto complainant in the aforesaid case (C.C.No.1147/99) where the accused therein stood charged for offence punishable under Section 326 I.P.C. As per judgment dated 30.6.2003 the accused therein was acquitted without examining the defacto complainant/injured in that case who is the petitioner herein. It is mentioned in the judgment that all the eye witnesses examined in that case denied to have witnessed the incident. The petitioner herein, was not served with summons and so he could not participate in the trial. It was stated that he had shifted his residence to another district. Criminal Revision Petition was filed before the Sessions Court, Thalassery as Crl.R.P.No.10 of 2005. The learned Sessions Judge found that there was delay of 423 days in filing the Crl.R.P. Crl.M.C.157/08 2 2. Mr.V.T.Madhavanunni, learned counsel for the petitioner submits that even according to the prosecution, there is no case that the summons in C.C.No.1147 of 1999 was served on the petitioner who was the defacto complainant/injured in that case. According to the petitioner, he had furnished his changed address with the concerned police station. Whatever that be, the fact remains that the case registered under Section 326 I.P.C. happened to be disposed of without examining the defacto complainant/injured. 3. Learned counsel for the petitioner would also submit that there was a counter case in which the petitioner was the accused, as C.C.No.685 of 2000. Learned counsel submits that the petitioner herein was convicted by the Magistrate in the aforesaid case on 18.1.2006. According to the learned counsel, that case was charged only under Section 324 I.P.C. It is also submitted that another private complaint was filed by the petitioner herein against the accused in C.C.No.1147 of 1999 and also against three other accused and that case is stated to be pending in view of the pendency of this Crl.M.C. The prosecution could not say why the fact that C.C.No.1147 of 1999 which was a Crl.M.C.157/08 3 counter case to C.C.No.685 of 2000 was pending, was omitted to be taken note of or brought to the notice of the learned Magistrate. The prosecution has a duty to inform the court as to the pendency or existence of a counter case. That was not done. The endeavour of the court should be to do justice to the parties. Since the case in which the petitioner was the defacto complainant was not duly prosecuted by examining the petitioner herein, it appears, serious prejudice has been caused to the petitioner. The accused-respondent in this case did not turn up in spite of notice having been served on him. Since C.C.No.51 of 2003 is stated to be still pending, it is just and proper that the judgment of acquittal passed in C.C.No.1147 of 1999 is set aside and the learned Magistrate is directed to dispose of the case after examining the petitioner/defacto complainant also. It is needless to say that the other witnesses in the said case also should be examined, if found necessary. 4. In the result, this Crl.M.C. is allowed. The judgment of acquittal passed in C.C.No.1147 of 1999 and the impugned order passed by the Sessions Court are set aside. The petitioner/defacto complainant shall appear before J.F.C.M.Court, Crl.M.C.157/08 4 Taliparamba on 26.4.2011. The learned Magistrate will also take up C.C.No.51 of 2003 and try that case also after securing the presence of the accused. The stay order passed in C.C.No.51 of 2003 is vacated. The learned Magistrate will see that C.C.No.51 of 2003 is also tried and disposed of simultaneously with C.C.No.1147 of 1999. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.157/08 5