IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 2691 of 2003 ---------------------------------------------- CC.316/1995 of JFCM, WADAKKANCHERY .................... REVN. PETITIONER/DEF. COMPLAINANT-INFORMANT: P.K.RADHAKRISHNAN, S/O KOCHUKUTTAN, POOTHOPARAMBIL HOUSE, PONGANAMKAD DESOM, KURICHIKKARA, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS/ACCUSED & COMPLAINANT: 1. IBRAHIM, S/O VATTAPARAMBIL AHAMMED VEERAN, CHUNKAM DESOM, CHERUTHURUTHY VILLAGE, THRISSUR DISTRICT. 2. STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, CHELAKKARA (CR.NO.60/95) HEREIN REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2691 of 2003 -------------------------- ORDER Petitioner, the defacto complainant in C.C.No. 316/1995 on the file of Judicial First Class Magistrate's Court, Wadakkanchery, filed this revision challenging the order of acquittal passed passed by the learned Magistrate. As per judgment dated 17.1.1997, learned Magistrate acquitted the petitioner of the offences under Sections 279 and 338 of Indian penal Code recording that though summons were served on CWs 1 to 4, the principal witnesses, they did not appear and in such circumstances, there is no evidence on the side of the prosecution to question the petitioner under Section 313 of Code of Criminal Procedure. Thereby, he was acquitted. The case of the petitioner is that learned Magistrate should not have acquitted the accused without taking coercive steps and in such circumstances, the order of acquittal is to be CRRP 2691/03 2 set aside. 2. Learned counsel appearing for the petitioner and first respondent and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the first respondent is that offence was allegedly committed on 26.7.1995 and the proceeding paper of the Magistrate shows that in spite of summons served on CWs 1 to 4, they did not appear and in such circumstances, the order of acquittal is perfectly legal. 4. The proceedings paper of the learned Magistrate shows that after first respondent/ accused appeared on 19.8.1996, particulars of the offences were read over to him and he pleaded not guilty. The case was posted to 29.10.1996 for examination of the witnesses. On that day, Magistrate was on leave and it was posted, by notification, to 7.12.1996. On that day, first respondent was absent. He applied and the learned CRRP 2691/03 3 Magistrate directed issuance of summons to CWs 1 to 4 to 15.1.1997. Original summons available in the records show that summons directing the witnesses to appear on 15.1.1997 were served on CWs 1 to 4. On 15.1.1997, the witnesses, including the petitioner did not appear. It is, thereafter, learned Magistrate acquitted the petitioner under Section 255(1) of Code of Criminal Procedure. As rightly pointed out by the learned counsel appearing for the petitioner, considering the nature of the offences, learned Magistrate was not justified in acquitting the accused without taking coercive steps against the witnesses. Though the order shows that in spite of steps the witnesses did not appear, proceedings paper shows that only summons were issued. In such circumstances, the order of acquittal is illegal. Revision is allowed. Order of acquittal in C.C. No.316/1995 by Judicial First Class Magistrate, Wadakkanchery is set aside. C.C.No.316/1995 is CRRP 2691/03 4 restored to file. Magistrate is directed to record the evidence and thereafter proceed in accordance with law. Magistrate is directed to issue fresh summons to CWs 1 to 4. It is made clear that in case they did not appear, it is for the Magistrate to issue non bailable warrants against them. Petitioner and first respondent are directed to appear before the Magistrate on 07.09.2010. Send back the records. 10th August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 2691/03 5 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2691 of 2003 -------------------------- ORDER 10th August, 2010