IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 649 of 2001() ----------------------------- ORDER IN CRL.M.P.NO.6430/1998 OF JUDICIAL FIRST CLASS MAGISTRATE I, THODUPUZHA REVISION PETITIONER/COMPLAINANT: --------------------- JOSEPH @ KUNJUMON, S/O.ITTYAVIRAH, POTTAKKAL HOUSE, NOOREKKARKARA, KUTTAMPUZHA VILLAGE. BY ADV. SRI.SIBY MATHEW RESPONDENTS/ACCUSED AND STATE: --------------- 1. BHARNABAS @ FERNANDAS, PALAMATTATHIL HOUSE, KUTTIYAMCHAL KARAYIL, KUTTAMPUZHA VILLAGE. 2. CHARLY, S/O.BHARNABAS, PALAMATTATHIL HOUSE, -DO- -DO- 3. BABU, S/O.BHARNABAS, PALAMATTAHIL HOUSE, NOOREKKAR KARA, KUTTAMPUZHA VILLAGE. 4. MARY W/O.BHARNABAS, PALAMATTAIL HOUSE, -DO- -DO- 5. RAMAN, PALAMATTATHIL HOUSE, -DO- -DO- 6. RAJESH, S/O.RAMAN, PALAMATTATHIL HOUSE, -DO- -DO- 7. BABY, S/O.KUNJUKUNJU, ATTUPURATHU VEEDU, KUTTIYAMCHAL KARA, KUTTAMPUZHA. 8. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.H.SIVARAMAN FOR R1 TO R7 ADV. SHRI MATHEW CHERIAN FOR R1 TO R7 BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R8 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.649 of 2001 -------------------------------------- Dated this the 29th day of September, 2008. ORDER Heard counsel for revision petitioner and Public Prosecutor. There is no representation for respondents 1 to 7. 2. Revision petitioner is aggrieved by order dated 5.7.1999 passed by the court below dismissing the private complaint - Crl.M.P. No.6430 of 1998 preferred by him against respondents 1 to 7 for offences punishable under Sections 143, 145, 147, 323, 324, 447 and 452 read with Section 149 of Indian Penal Code. Counsel for revision petitioner submits that learned Magistrate has not even indicated the provision of law under which the impugned order was passed and that at any rate, there was no deliberate absence on the part of revision petitioner. 3. According to revision petitioner, first respondent owed Rs.400/- to him which he demanded on the morning of 9.9.1997. He told first respondent that if the amount is not paid, he may have to prefer complaint to the appropriate authorities. At about 7 p.m. the same day, respondents 1 to 7 who formed unlawful assembly trespassed into revision petitioner’s house and caused hurt to him with stones and stick. His daughter also sustained injuries in the incident. He reported the matter to the police but no action was taken. Therefore, he preferred a complaint in the court below which was forwarded to Crl.R.P.No.649/2001 2 the Kuttambuzha Police for investigation under Section 156(3) of Code of Criminal Procedure. Kuttambuzha police registered Crime No.123 of 1997 and submitted final report. Case was taken on file as C.C.No.576 of 1997. It is only when revision petitioner got summons in that case that he learned that police filed final report excluding some of the respondents who were actually involved in the incident and deleting some of the offences. Aggrieved, he filed Crl.M.P.No.6430 of 1998 in the same court against respondents 1 to 7 for offences as aforesaid. Complaint was posted for recording his statement on 26.6.1998. In the meantime, Kuttambuzha police station till then within Idukki District was included within the Ernakulam District and all cases registered in Kuttambuzha police station were transferred to the court of Judicial First Class Magistrate, Muvattupuzha within Ernakulam District. Accordingly C.C.No.576 of 1997 also was transferred to that court. Revision petitioner, under the impression that Crl.M.P.No.6430 of 1998 also will be transferred to Muvattupuzha court did not attend the court below. He learned that on 5.7.1999 the complaint was dismissed. 4. Learned counsel submitted that dismissal of the complaint could not have been made under Section 249 of the Code since some of the offences attributed to respondents 1 to 7 are cognizable as well as non- compoundable. I went through the order sheet of court below and find that sworn statement of revision petitioner and some of his witnesses were recorded and the Crl.M.P. was posted on 6.2.1999 for further evidence. That day, revision petitioner submitted that he has no further evidence and hence Crl.M.P. Crl.R.P.No.649/2001 3 posted on 27.2.1999. For the next three hearing dates there was no sitting and hence Crl.M.P. was posted on 3.7.1999 by notification. That day revision petitioner remained absent and there was no representation. The same thing happened on 5.7.1999 when the impugned order was passed. 5. Be it under Section 249 or Section 203 of Code of Criminal Procedure, in so far as the sworn statement of revision petitioner and his witnesses having been recorded learned Magistrate was required to state briefly at least the reason for dismissal of the complaint. Order under challenge would show that the dismissal was merely for the reason of absence of revision petitioner which cannot be sustained. There is also no reason to think in the circumstances stated by revision petitioner that his absence was willful. As such, I am persuaded to interfere with the order under challenge. Revision Petition is therefore, allowed. Impugned order dated 5.7.1999 is set aside and Crl.M.P.No.6430 of 1998 is remitted to the court below for disposal as provided under law. Revision petitioner shall appear in the court below on 31.10.2008. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.649/2001 4 THOMAS P.JOSEPH,J. Crl.R.P.No.649 of 2001 ORDER 29th September, 2008. cks Crl.R.P.No.649/2001 5