IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY WEDNESDAY, THE 17TH JANUARY 2007 / 27TH PAUSHA 1928 CRL.A.No. 919 of 1998(C) ------------------------ CC.1290/1997 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... APPELLANT/COMPLAINANT: --------------------- M.J. JACOB, S/O. V.C. JACOB, JACOB PHARMACEUTICALS, YMCA, KOTTAYAM, RESIDING AT VALAYIL POOVANTHARA, THAZHATHANGADY P.O., KOTTAYAM DISTRICT BY ADV. SRI.M.NARENDRA KUMAR RESPONDENTS/ACCUSED: ------------------- 1. STEPHIN ANTONY, W/O. ANTONY, KANDATHIL BUNGLOW, NEAR IRON BRIDGE, KOLLAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR R2 BY PUBLIC PROSECUTOR SHRI K.C. SANTHOSH KUMAR R1 BY ADVOCATE SRI.KURIAN GEORGE KANNAMTHANAM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY, J. ---------------------------- Crl.Appeal No.919 of 1998 ---------------------------- Dated this the 17th day of January, 2007 Judgment This appeal is filed against the acquittal of the accused under section 256 (1) of the Code of Criminal Procedure. The proceedings would show that the complainant was very vigilant in prosecuting the case. Despite several postings, accused/first respondent was not present before court. Bailable warrant was issued. Even then, accused was not present, but, on the absence of the appellant for one day, that too, after filing an application for exemption, the court acquitted the accused under section 256 (1) Cr.P.C. This is a gross error in procedure. Even though criminal court has power to acquit the accused under section 256 (1) Cr. P.C. for the absence of the complainant, such a procedure can be taken only if the complainant is persistently absent. When accused was absent, presence of the complainant was not absolutely necessary. In the above circumstances, without expressing any opinion regarding the merits of the case, order of acquittal is set aside and the matter is remanded. Crl.A.No.919/98 2 Trial court is directed to proceed with the case. Both parties shall appear before the trial court on 5.3.2007. J.B.KOSHY JUDGE vaa J.B. KOSHY, J. -------------------------- CRL.APPEAL No.919/98 -------------------------- Judgment Dated:17th January, 2007