IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.Rev.Pet.No. 2165 of 2010(A) ------------------------------------- (CC.324/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL) .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------------------- BABU, S/O. VASU, KOCHU VEEDU, KYLATHUKONAM, KAVAKKADA, VEILOOR VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENT(S): STATE & ACCUSED 1 & 2 ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.NOOHUKANNU, SABEENA MANZIL, MANGALAPURAM, THONNAKKAL, VEILOOR VILLAGE, THIRUVANANTHAPURAM. 3. NABEEZA BEEVI, W/O. NOOHUKANNU, SABEENA MANZIL, MANGALAPURAM, THONNAKKAL, VEILOOR VILLAGE, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2165 of 2010 ------------------------------- Dated this the 13th day of September, 2010. O R D E R This revision petition is directed against the order dated 2.9.2004 of the Court of Judicial First Class Magistrate-Attingal, in C.C.No.324/03 discharging the accused u/s.245(2) Cr.P.C. 2. The learned counsel for the revision petitioner vehemently argued that, the complainant could not appear before the court below on 4.9.2004, as he was laid up and as he was physically absent, he was represented through his counsel and therefore the order of the learned Magistrate is liable to be set aside. It is also the contention of the learned counsel that, the provisions invoked by the learned Magistrate to discharge the accused is not proper and the learned Magistrate ought to have invoked S.249 of Cr.P.C. 3. The offence alleged is u/s.420 of IPC and there are two accused in the above private complaint. From the impugned order it appears that pursuant to the summons, the accused appeared and they were enlarged on bail and the case was 2 Crl. R.P.No.2165 of 2010 adjourned to 24.7.2004 for evidence u/s.244 of Cr.P.C. As on 24.7.2004, the complainant was absent and the case was adjourned to 2.9.2004 with a specific direction to the complainant to appear for evidence u/s.244 of Cr.P.C. In the impugned order, the learned Magistrate has specifically found that, inspite of specific direction, the complainant was again absent and he did not appear to adduce the evidence as directed by the court. So the learned Magistrate came into a conclusion that, the complainant was not interested in prosecuting the case. From the above order it appears that, the complainant is not interested in prosecuting the matter vigilantly. It is true that though the above Crl.R.P. was filed belatedly, this court has condoned the delay of 199 days. Even though the belated revision petition was filed on 22.7.2005, it appears that the complainant has not shown any personal interest in prosecuting the revision petition and thus due to the laches, the matter came up for consideration for condoning the delay petition only on 19.7.2010, on which date the delay was condoned. 3 Crl. R.P.No.2165 of 2010 4. It is also a fact that though notice was ordered and received by the respondents, nobody has turned up and no objection is raised. The impugned order is dated 2.9.2004, connected with a case pertained to the year 2003. So after the institution of the above case, 7 years are over. It is also relevant to note that the order impugned is issued u/s.245(2) of Cr.P.C. discharging the accused, which shows that even though there is an order discharging the accused, the mere discharge will not protrude the complaint and if he is interested in approaching the court below by filing a fresh complaint and it is then up to the court to take a decision as to whether such a complaint should be entertained or not, after considering the merit of the case. It is also the contention of the learned counsel that, since the discharge is u/s.245(2) of Cr.P.C. there will be a bar for filing a fresh complaint and if the discharge was u/s.249 of Cr.P.C., such a discharge will not be a bar in preferring a second complaint. However, I am not proposed to go into the details of these contentions at this belated stage. From the facts stated above, it 4 Crl. R.P.No.2165 of 2010 is crystal clear that there is sheer negligence and delay on the part of the revision petitioner in prosecuting the matter vigilantly and hence there is no merit in this revision petition. Therefore subjected to the above observations, this criminal revision petition is dismissed accordingly. V.K.MOHANAN, Judge. ami/