IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 3588 of 2008() ------------------------------ (C.C.NO.373/2001 OF JUDICIAL I CLASS MAGISTRATE, SASTHAMCOTTA) REVN. PETITIONER(S):DEFACTO COMPLAINANT ----------------------------------------------------- MANIAMMA RESIDING AT EDAVANAVADAKKATHIL VEEDU ERAVICHIRAPADINJARU, SOORANAD SOUTH VILLAGE BY ADV. SRI.A.AHZAR RESPONDENT(S): STATE & ACCUSED ---------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. MURALEEDHARAN PILLAI S/O.RAMACHANDRAN PILLAI EDAVANAVADAKKATHIL VEEDU ERAVICHIRAPADINJARU, SOORANAD SOUTH VILLAGE. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3588 OF 2008 =========================== Dated this the 7th day of November,2008 ORDER Revision is filed by the de facto complainant the injured in C.C.373/2001 on the file of Judicial First Class Magistrate, Sasthamcotta challenging the order of acquittal of the second respondent, the accused in the case, under section 248(1) of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner and second respondent were heard. 3. The order of acquittal shows that though prosecution case was that second respondent committed the offence under section 498A of IPC and to prove the case ten witnesses were cited stating that inspite of coercive steps appearance of witnesses could not be secured and as is no evidence to prove the guilt, second respondent was acquitted. 4. The records of the courts below establish CRRP3588/2008 2 that second respondent appeared and charge was framed on 11.1.2002. After granting bail the case was adjourned to 14.6.2002 to produce witness. It was adjourned to 21.12.2002 and thereafter to 27.6.2003 and then to 18.10.2003. On that day summons to Cws.1 to 3 were issued and case was posted to 18.12.2003. On 18.12.2003 it was adjourned by notification to 26.2.2004 and again adjourned by notification to 2.6.2004. Proceedings of 2.6.2004 reads:- “Accused present. No witnesses present. Bailable warrant against Cws.1 to 7. Posted to 25.8.2004.” The records show that summons on Cws. 1 to 3 were not served as directed on 18.10.2003 and the summons were returned praying time for service. Still without issuing further summons bailable warrant was issued on 25.8.2004. The proceedings of 25.8.2004 reads:- “Accused present. Issue CRRP3588/2008 3 summons to CW1 through registered post. Posted to 15.10.2004.” Records establish that bailable warrants issued to Cws.1 to 7 were returned stating that due to law and order duty they could not be executed. Learned Magistrate did not pursue that matter and instead issued only summons to CW1 on 25.8.2004 by registered post. On 15.10.2004 the case was adjourned to 28.10.2004 as follows:- “Accused present. No witness present. Evidence closed. Posted to 28.10.2004.” The registered cover which is available in the records shows that it was returned to the court as addressee not known much before 15.10.2004. Without issuing further summons learned Magistrate closed the evidence on 15.10.2004. 5. On 28.10.2004 the accused was absent. Learned Magistrate reopened the evidence and issued summons to Cws.4 to 10 and posted the case to CRRP3588/2008 4 19.11.2004. On 19.11.2004 recording that no witness was present bailable warrant was issued against Cws.1 to 10 and posted the case to 22.12.2004. On 22.12.2004 the evidence was closed as follows:- “Accused present. No witnesses present. Evidence closed. Posted to 28.12.2004.” On 28.12.2004 it was adjourned by notification to 12.1.2005 on which day also it was adjourned as accused absent. For hearing to 25.1.2005. On 25.1.2005 it was adjourned by notification to 30.3.2005 and on that day it was adjourned to the next day. On that day the order of acquittal was passed finding the accused not guilty. Summons to Cws.4 to 10 were in fact returned to the court without service stating that there was no sufficient time to serve the summons. Non bailable warrant issued to Cws. 4 to 10 on 19.11.2004 is also seen returned back to the court stating that CRRP3588/2008 5 because of law and order warrant could not be issued. 6. It is absolutely clear form the records that when the Magistrate acquitted the second respondent under section 248(1) of Code of Criminal Procedure learned Magistrate did not verify the records to see whether the summons or warrant issued to the prosecution witnesses were served or executed. When summons were not served on the accused and even the bailable warrant returned back to the court without service stating that because of law and order police could not serve the summons or execute the warrant, Magistrate should have directed service of summons on the prosecution witnesses and only if inspite of the service they did not appear, an order of acquittal for want of evidence could have been passed. The proceedings establish that learned Magistrate illegally acquitted second respondent on 31.3.05. The Criminal Revision Petition is allowed. The order of acquittal is set aside. C.C.373/2001 CRRP3588/2008 6 is restored to file and remanded to Judicial First Class Magistrate with a direction to issue summons to the prosecution witnesses and dispose the case in accordance with law. As the revision petitioner is the first witness to be examined by the prosecution, revision petitioner and second respondent accused are directed to appear before the Magistrate on 30.12.2008. Send back the records. Criminal Revision Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006