IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.L.P..No. 540 of 2008() ----------------------------------- C.C. NO. 1617/2007 OF THE ADDL. CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM. PETITIONER/COMPLAINT:- ----------------------- DR.SAROJA NAIR, THE INDIA HOSPITAL, MELE THAMPANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.THOMAS ABRAHAM RESPONDENT(S): ACCUSED 1 TO 3 AND STATE -------------------------- 1. S.RAMACHANDRAN NAIR, ALO 1S CIRCLE, THIRUVANANTHAPURAM. 2. SMT. A.V. GEETHAKUMARI, ALO THIRUVANANTHAPURAM. 3. A.ALEXANDER, ALO, THIRUVANANTHAPURAM. 4. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.L.P.No.540 of 2008 ---------------------------------------- Dated this the 28th day of October 2008 O R D E R The petitioner is the complainant in a prosecution for offences punishable under Sections 447 and 427 read with 34 I.P.C. She has come to this court with this application for leave to appeal under Section 378(4) Cr.P.C against the dismissal of a complaint filed by her. The dismissal of the complaint was done invoking powers under Section 256 Cr.P.C. 2. The accused persons are officials of the Labour Department, who had allegedly gone to the India Hospital, Thiruvananthapuram run by the petitioner herein. The crux of the allegations is that these Labour officers trespassed into the portions of the hospital which they were not supposed to, in the interests of health of the patients and the safe upkeep of the hospital. The alleged incident took place in 2001. Complaint was filed before the police. The same was referred by the police. Thereupon a private complaint was filed. At long last, cognizance was taken on the basis of a private complaint and the matter was posted for recording the evidence of the complainant. The case was posted to 20/2/2008 with a specific direction to the complainant to appear on 23/2/2008 for evidence. On that day, there was no sitting. By notification, the case was adjourned to 11/3/2008. The complainant was not present on that day. The court indulgently posted the case to 4/4/2008 directing the complainant to appear on that day. On 4/4/2008, the complainant was not present. Accused 1 to 3 were represented. As last chance, the case was posted to 5/4/2008. On 5/4/2008, when the case came up for hearing, accused 1 to 3 were represented. The complainant was absent. Her application was dismissed and the accused were acquitted and the complaint was dismissed under Section 256(1) Cr.P.C. 3. The personal presence of the complainant is not to be insisted by any court unless the progress of the case demands and warrants the personal presence of the complainant. On all other dates, the complainant can be represented by his counsel, it is by now well settled. But to record evidence in the case, the complainant has to be present. The complainant, in the instant case, it is seen, was not present on as many as three prior occasions and it was only thereafter that the complaint was dismissed by the learned Magistrate. The sequence of events and the nature of allegations have all been borne in mind by me. I am not persuaded to agree in the facts and circumstances of this case that this is an eminently fit case where leave deserves to be granted to the petitioner under Section 378(4) Cr.P.C. In coming to this conclusion, I have taken note of all the relevant circumstances. I have taken note of the nature of allegations, the fact that the alleged incident had taken place prior to 2001, that the police have submitted a negative final report referring the complaint filed by the petitioner, that cognizance had been taken long back and sufficient opportunity has been granted to the petitioner to substantiate her complaint, I am not persuaded to agree that the learned Magistrate had committed any gross impropriety in not considering the last of the successive applications filed by the petitioner for adjournment of the case when the case took posted for evidence as the last chance. 4. In the result, a) This leave petition is dismissed. b) Leave under Section 378(4) Cr.P.C is refused. (R.BASANT, JUDGE) jsr No representation for the petitioner.