A court cannot discharge an accused without ensuring proper service of notice, as per the requirements under the Code of Criminal Procedure.

O R D E R

These revision cases were initiated suo motu. The proceedings in the cases concerned were stopped by the court below invoking the provisions of Section 258 of the Code of Criminal Procedure, 1973 . Noticing that the court below exercised jurisdiction under Section 258 of the Code in an arbitrary manner and the accused were acquitted without taking sufficient steps to ascertain whether presence of the accused concerned could be procured, these revision cases were initiated.

2. In these cases, notices were ordered to be served on the party respondents who are the accused in the respective cases. Notice was issued on several occasions from this Court. But could not be served. As per the order dated 27.03.2018, this Court directed the District Police Chief, Kollam to constitute a special squad to ensure that the notices are served on the respective accused. Despite taking earnest efforts by the police, notices could not be served on the accused concerned.

3. Every time, the notice has been returned with the endorsement 'addressee not found'.

4. I am convinced that notice is not able to be served on the party respondent-accused for want of correct/ sufficient address. What can be inferred is that the address was collected by the police at the time of initiation of the case, without proper verification. Either the accused concerned would have given incorrect address purposefully or that the accused shifted residence without a possibility of ascertaining their present address and whereabouts.

5. As per the orders impugned in these revision cases, the accused were discharged. In view of the proviso to Section 398 of the Code, no order to inquire into the case, where the accused has been discharged, is possible unless such person has been given an opportunity of being heard. Therefore service of notice on the party respondents-accused is necessary if to set aside the impugned order and remit the matter to the court below for inquiring into or trying the offence. In none of these cases, there is a likelyhood of giving notice to the party respondent-accused.

6. A Division Bench of this Court considered the situations when Section 258 of the Code can be invoked in a summons case which does not qualify to be termed as a petty case, in Suo motu v. State of Kerala and another [2023 KHC OnLine 821]. It was held:

“ii. In the case of those summons-cases instituted otherwise than upon a complaint, which do not qualify as petty offences, where the prosecution files a report stating unambiguously that despite its best efforts at locating the accused, it has not been successful in securing the presence of the accused before the Magistrate, the Magistrate concerned shall scrutinise the report submitted by the prosecution to satisfy himself/herself of the fact that reasonably sufficient steps have been taken by the prosecution to ensure the presence of the accused and that the costs of ensuring the appearance of such accused far exceed the maximum fine that is prescribed under the Statute for the offence concerned. In the event of the Magistrate being satisfied of both of the aspects mentioned above, then it would be permissible for the Magistrate to record an order of stoppage of proceedings in accordance with Section 258 of the Cr.P.C.”

7. The details of the offences involved in these cases are tabulated below: