IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 Crl.Rev.Pet.No. 94 of 2009() ---------------------------- CC.97/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... REVISION PETITIONER/COMPLAINANT: ----------------------------------------------------------- ANIL KUMAR, S/O.CHANDRASEKHARA PILLAI, KAMUKARAKONATHU VEEDU, THEKKADA VILLAGE, KANYAKULANGARA, VEMBAYAM P.O. THIRUVANANTHAPURAM. BY ADV. MR.R.T.PRADEEP RESPONDENT(S): STATE & ACCUSED: ----------------------------------------------------------- 1. STATE OF KEALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SABEER, S/O.MUHAMMAD HANEEFA, PARAKONATHU VEEDU, KOPPAM, NEDUMANGAD, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR MR. I.V. PRAMOD R2 BY ADV.MR.P.V.KUNHIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON 11/03/2010 PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.94 of 2009 = = = = = = = = = = = = Dated this the 11th day of March, 2010. O R D E R The revision petitioner is the complainant in CC.No.97 of 2005 on the file of the Judicial Magistrate of the First Class-I, Nedumangad. The revision petitioner was prosecuted by the 2nd respondent for offence under Section 420 IPC. The learned Magistrate took cognizance and posted for evidence under Sec.244 of the Code of Criminal Procedure. After various adjournments, on 28.10.2006 the revision petitioner was examined partly as Pw1 and Exts.P1 and P2 were marked. Since he was not well, his examination could not be completed on that day. Thereafter a few adjournments were seen granted by the learned Magistrate for one reason or other. On 21.7.2007 the revision petitioner was absent. There was no representation on his side. The learned Magistrate by the Crl.R.P.No.94 of 2009. -: 2 :- impugned order dtd.21.7.2007 discharged the 2nd respondent under Sec.249 of the Crl.P.C. Assailing the legality, correctness and propriety of the above order, this revision petition was filed. 2. Heard either side. Going through the order sheet of the court below, I find that though the revision petitioner was the complainant, really he was persecuted in the matter. Case was adjourned on various occasions, many often for no good reason. As I mentioned earlier, the revision petitioner was partly examined on 28.10.2006. Then the case was posted to 27.11.2006. On that day, it was adjourned to 6.2.2008 by notification, probably due to the non sitting of the court. On 6.2.2008, though both parties were present, the junior defence counsel sought for time and the case was adjourned to 7.10.2007. On that day also, the revision petitioner was present, but the learned counsel for the 2nd respondent sought for time. Then it was Crl.R.P.No.94 of 2009. -: 3 :- adjourned to 7.5.2007. On that day also the revision petitioner was present. The 2nd respondent applied for adjournment for the reason that his counsel was absent. Adjournment was granted on condition of payment of Rs.100/- and the case was posted to 1.6.2007 for payment of cost. On 1.6.2007 the revision petitioner was absent and applied for adjournment. The order to pay cost on 7.5.2005 was cancelled. What was given with one hand was taken with another hand. The case was then posted to 16.6.2007. On that day the revision petitioner applied. Then the case was posted to 27.7.2007, on which day the revision petitioner was absent and the order impugned was passed. 3. What is mentioned above would show that the learned Magistrate was indiscriminate in granting adjournments in a part heard matter, though the revision petitioner was present for further examination on three occasions. Thereafter, the case was adjourned at the Crl.R.P.No.94 of 2009. -: 4 :- instance of the first respondent, who was the accused. It is ignoring that fact, the learned Magistrate thrust the impugned order on 21.7.2007 for the reason that he was absent. The proceedings on 28.10.2006 itself would show that the revision petitioner was an ailing person. Irrespective of his ailment, he had been attending the court. But the case was adjourned to his disappointment and ultimately, on 27.7.2007 the second respondent was discharged. It appears that it is a penalty imposed on the revision petitioner, which he didn't deserve. The learned Magistrate ought to have noted that the adjournments of the case mainly occurred on various occasions because of the request for adjournments made by the 2nd respondent. The revision petitioner, who was the complainant was at the mercy of the accused. Lower court should not have allowed it. In this view of the matter, the discharge of the 2nd Crl.R.P.No.94 of 2009. -: 5 :- respondent in a case where serious offence alleged is, in fact, denial of justice. The order of discharge was with a reasoning that the revision petitioner was not interested in the case. That is absolutely incorrect and devoid of truth. The order impugned in this revision petition is thus vitiated and not sustainable. In the result, this revision petition is allowed. While reversing the order impugned, the matter is remitted back to the lower court for disposal on merits. The learned Magistrate shall dispose the case within four months from the date of receipt of this order. P.S.GOPINATHAN (Judge) Kvs/-