IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 CRL.A.No. 631 of 2001() ----------------------- CC.1419/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT(S)/COMPLAINANT: --------------------------------- SOMAN, S/O.KAITHAKAL SANKU, THOYAKKAVU, CHAVAKKAD THALUK. BY ADV. SRI.RAJIT RESPONDENT(S)/ACCUSED: ------------------------------- SASIKUMAR, S/O.VASU, THOYAKKAVU DESOM, CHAVAKKAD THALUK. ADV. SRI.C.A.CHACKO THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.A.NO.631 OF 2001 --------------------------------------------- Dated 18th May, 2010 JUDGMENT Appellant is the complainant in C.C.1419/1998 on the file of Judicial First Class Magistrate, Chavakkad. Learned Magistrate dismissed the complaint on 18/5/2001 finding that complainant and accused were absent. Appeal is filed challenging the order of dismissal of the complaint and order of acquittal. 2. Learned counsel appearing for the appellant and first respondent were heard. Records of the learned Magistrate perused. 3. Records of the learned Magistrate show that first respondent did not originally appear and non bailable warrant was issued and thereafter he filed a petition to re-call the warrant and to release him on bail. Learned CRA..631/01 2 Magistrate on 23/7/1999 granted bail. Later first respondent failed to appear. Proceeding paper shows that appellant and first respondent were filing applications to condone the absence. The impugned order shows that learned Magistrate finding that case was taken on file on 31/12/1998 and accused appeared on 24/9/1999 and posted for evidence and appellant did not appear continuously, he is not interested to proceed with the evidence and acquitted first respondent under Section 256(1) of Code of Criminal Procedure and dismissed the complaint. Records show that on 18/5/2001 an application was filed on behalf of the appellant by his counsel stating that as the appellant is laid up, he could not appear on that day and therefore, his absence is to be condoned. Records and the impugned orders show that on 18/5/2001 also first respondent was absent. CRA..631/01 3 Therefore, even if appellant was present, the learned Magistrate could not have proceeded with recording the evidence. In such circumstances, when application was filed for exemption, learned Magistrate should not have dismissed the complaint or acquitted the accused under Section 256(1) of Code of Criminal Procedure, especially when the accused was not appearing before the court continuously on the previous occasions and did not appear even on 18/5/2001. Interest of justice warrants an opportunity to adduce evidence to the appellant. At the same time appellant cannot be allowed to protract the trial indefinitely. If the accused is absent, learned Magistrate has to take coercive steps to procure his presence and proceed with the case. If in spite of availability of the accused, appellant is not appearing and giving CRA..631/01 4 evidence, learned Magistrate is definitely entitled to proceed under Section 256(1) of Code of Criminal Procedure. Petition is allowed. Order dated 18/5/2001 in C.C.1419/1998 on the file of Judicial First Class Magistrate, Chavakkad dismissing the complaint and acquitting the accused under Section 256(1) of Code of Criminal Procedure is set aside. C.C.1419/1998 is restored to file. Learned Magistrate is directed to proceed with the trial. Parties are directed to appear before the learned Magistrate on 29/6/2010. Sent back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE. uj.