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2022 Supreme(Online)(KER) 55322
HIGH COURT OF KERALA
Kauser Edappagath, J
DR.PREMSANKAR
– Appellant
Versus
THE STATE OF KERALA – Respondent
CRL.A 847 2019
P.MARTIN JOSE, M.A.MOHAMMED SIRAJ, P.PRIJITH, THOMAS P.KURUVILLA, MANJUNATH MENON, AJAY BEN JOSE, SRI.P.VIJAYA BHANU (SR.), SRI.P.M.RAFIQ, SRI.M.REVIKRISHNAN, SRI.AJEESH K.SASI, SRI.V.C.SARATH, SMT.SRUKTHY BHAT, POOJA PANKAJ, SMT BINDU O.V-PP
A complainant's presence does not warrant dismissal of a case due to absent counsel; courts must allow opportunities for evidence to be presented.
Headnote:
Acquittal - Private Complaint - Cr.P.C Sections [202, 244, 255(1)] - The court found that the acquittal of the accused was incorrect due to the complainant's absence of evidence and determination that the court below should have allowed for the introduction of evidence.
Fact of the Case:
The appellant filed a private complaint against the respondents, which the court took on file. The case was adjourned multiple times and was dismissed due to the absence of the complainant's counsel, leading to the acquittal of the respondents.
Finding of the Court:
The court noted that while the complainant was present, the absence of legal representation alone should not have resulted in acquittal, especially given the complainant's consistent attendance and request for adjournment.
Issues: Whether the court below acted correctly by dismissing the complaint and acquitting the accused under Section 255(1) of Cr.P.C. despite the complainant's presence.
Ratio Decidendi: The acquittal under Section 255(1) was determined to be inappropriate, as the court failed to consider the complainant's request to present evidence. Dismissal should not occur simply due to the absence of counsel, especially when the complainant was present.
Final Decision: The appeal is allowed; the impugned judgment is set aside, and the case shall proceed in accordance with law.
J U D G M E N T
Dated this the 1st day of July, 2022 This appeal has been filed challenging the judgment in C.C.No.790/2011 on the file of the Judicial First Class Magistrate Court, Chavakkad. The appellant is the defacto complainant.
Respondents 2 to 5 are the accused.
2. The appellant herein filed a private complaint before the Judicial First Class Magistrate Court, Chavakkad (for short 'the Court below') against the respondent Nos. 2 to 5. The court below after conducting enquiry under Section 202 of Cr.P.C took the complaint on file and issued process to respondent Nos. 2 to 5. The respondents entered appearance. Thereafter, the case was posted for evidence under Section 244 of Cr.P.C. It was adjourned from time to time. When the case was posted on 30.3.2019, even though the complainant/appellant herein was present, the counsel for the complainant was absent. The complainant sought for adjournment. But the court below dismissed the complaint and acquitted the accused under Section 255 (1) of Cr.P.C as per the impugned judgment. The said judgment is under challenge in this appeal.
3. I have heard Sri. P. Martin Jose, the learned counsel for the appellant, Smt. Sruthy Bhat, the learned counsel for respondent Nos. 2 to 5 and the learned Public Prosecutor.
4. The proceedings paper would show that almost on all posting dates, the appellant/complainant was physically present before the court below. On 30.3.2019 also the complainant was present. However, the counsel for the complainant could not be present and the complainant sought adjournment which was rejected by the court below. It is pertinent to note that the accused were acquitted under Section 255 (1) of Cr.P.C. The acquittal under (1) of Cr.P.C arises only in a case where the Magistrate, after recording evidence under Section 244 of Cr.P.C finds that the accused is not guilty. This is a case where the complainant did not adduce evidence. Hence, I am of the view that the acquittal of the accused under (1) of Cr.P.C is not correct. Moreover, the court below ought to have give an opportunity to the complainant to adduce evidence. Hence, I am of the view that the impugned judgment cannot be sustained.
For the reasons stated above, the appeal is allowed. The impugned judgment is set aside. The court below shall take back the case(C.C.No.790/2011) on file and proceed with the same in accordance with law.
