Kerala High Court
Varghese Jose vs Sugunapalan on 16 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 16TH DAY OF JANUARY 2024 / 26TH POUSHA, 1945
CRL.A NO. 1498 OF 2023
CRIME NO.....OF...
AGAINST THE ORDER DATED 25.03.2023 IN CC 131/2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, ALATHUR
APPELLANT/COMPLAINANT:
VARGHESE JOSE
AGED 52 YEARS
S/O JOSE, THANIKKAL CHALISSERY VEEDU, KARAMUKKU
DESOM,KARAMUKKU VILLAGE, THRISSUR DISTRICT, PIN -
680617
BY ADVS.
N.M.MADHU
P.P.HARRIS
C.S.RAJANI
SOHAIL AHAMMED HARRIS P.P.
RESPONDENTS/ACCUSED/STATE:
1 SUGUNAPALAN
S/O KUNJAYYAPPAN, POYYARA VEEDU, MANAKKODI. P. O,
ARIMBUR VILLAGE, THRISSURDISTRICT, PIN - 680012
2 THE STATE OF KERALA
REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY ADVS.
T.A.SHAIN
RADHAKRISHNA PILLAI.G.(K/000015/1997)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1498 OF 2023 2
JUDGMENT
This is an appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973. The appellant filed a complaint alleging that the 1st respondent committed offence punishable under Sections 500 and 501 of the Indian Penal Code, 1860. The 1 st respondent was acquitted by the Court below as per the order dated 25.03.2023 invoking the provisions of Section 256(1) of the Code. The correctness and legality of the said order is under challenge in this appeal.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor. Despite service of notice, the 1 st respondent did not choose to appear before this Court.
The impugned order reads as follows:
This is a private complaint filed u/s. 190 of Cr.P.C alleging offences punishable u/s. 500 and 501 of the Indian Penal Code.
Complainant absent. Accused present. Complainant did not turn up and adduce evidence. Hence, accused is acquitted u/s. 256 of the Code of Criminal Procedure, 1973.
3. The appellant has placed on record a certified copy of the proceedings in CC No.131 of 2019. It is seen from the proceedings that CRL.A NO. 1498 OF 2023 3 the 1st respondent-accused appeared before the learned Magistrate on 09.01.2020 and got enlarged on bail. On the said day or any subsequent days of hearing the plea of the 1 st respondent was not seen recorded. Unless the 1st respondent denied the accusation and claim to be trite, the question of recording the evidence on the side of the prosecution does not arise. However, the learned Magistrate on 25.03.2023 holding that the appellant did not turn up to adduce evidence acquitted the 1st respondent. No doubt, the learned Magistrate is empowered to acquit an accused in a summons case instituted on a complaint if the complainant fails to appear before the Court on a day appointed for appearance of the accused. But Section 256(1) of the Code can be invoked only if the learned Magistrate is of the view that the absence of the complainant was unjustified and by his absence proceedings in the case could not be continued.
4. In this case having plea of the 1 st respondent-accused been not recorded, the evidence of the complainant could not be recorded. Hence there was no purpose or reason insisting on the appearance of CRL.A NO. 1498 OF 2023 4 the complainant on 25.03.2023. In that view of the matter, the impugned order acquitting the 1st respondent is incorrect and not in terms of the provisions of Section 256(1) of the Code. Therefore the said order is liable to be set aside.
Accordingly this appeal is allowed. The order dated 25.03.2023 acquitting the 1st respondent is set aside. The Judicial Magistrate of First Class, Alathur is directed to restore CC No.131 of 2019 on file and proceed with in accordance with law. The appellant-complainant shall appear before the learned Magistrate on 12.02.2024.
Sd/-
P.G. AJITHKUMAR JUDGE SVP