IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.Rev.Pet.No. 2205 of 2009 ------------------------------ CMP.4200/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER/COMPLAINANT: ---------------------------- BEENA WILLIAM,D/O.MOOLANHIKKAL JOHN, AGED 43 YEARS, MOTHER THERESA COLONY, MARAYKARKANDY, KANNUR. BY ADV. SRI.V.R.KESAVA KAIMAL RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY ITS PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2205 of 2009 --------------------------------------- Dated this 14th day of July 2009 ORDER Heard counsel for petitioner and public prosecutor who took notice for respondent. 2. This revision is in challenge of order dated 02.05.09 on C.M.P.No.4200 of 2008 of the court of learned Judicial First Class Magistrate-1, Kannur. That was a complaint preferred by petitioner against two accused persons alleging commission of offences punishable under Secs.447, 427 r/w Sec.34 of the Penal Code. Vide the impugned order complaint was dismissed “under Sec.256 Cr.PC”, reason being that petitioner inspite of five chances to give sworn in statement did not turn up on 02.05.09. Learned counsel for petitioner contend that dismissal could only have been under Sec.204(4) of the Code of Criminal Procedure (for short, “the Code”). It is also contended by learned counsel that petitioner had sufficient reason for absence in the court below on the relevant day. Crl.R.P.No.2205 of 2009 2 3. It is seen from the order under challenge that complaint was dismissed under Sec.256 of the Code. That provision in my view cannot apply to the facts of the case since it refers to consequence of non appearance of the complainant after the issue of summons to the accused. This case has not reached that stage. Nor can the dismissal be one under Sec.203 of the Code as enquiry Sec.202 of the Code has not been conducted. Sec.204(4) of the Code deals with dismissal of the complaint for failure to produce process fees or other fees payable by the complainants. No such situation also has arisen in this case. Therefore in my view the impugned order can only be treated as one rejecting the complaint for non prosecution which is revisable under Sec.397 of the Code. 4. Learned magistrate has observed that petitioner was given five chances to give sworn statement but she did not turn up. Learned counsel states that on of the said five occasion, there were no sittings for the learned magistrate on three occasions and on one day petitioner was laid up while on another day her father was laid Crl.R.P.No.2205 of 2009 3 up and admitted to the hospital. I am not inclined to think that non appearance of the petitioner in the trial court on the relevant day was willful. Hence I am inclined to give petitioner an opportunity to prosecute the complaint by taking further efforts. Resultantly revision is allowed. Order under challenge is set aside and the complaint is remitted to the court below for fresh disposal after giving petitioner an opportunity to give sworn statement. Petitioner shall appear in the trial court on 10-08-09. THOMAS P JOSEPH, JUDGE Sbna/