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HIGH COURT OF KERALA
ALEXANDER THOMAS, J
RESHMA.M
– Appellant
Versus
STATE OF KERALA, – Respondent
Crl.Rev.Pet 368 2019
Criminal Law - Criminal Procedure - Code of Criminal Procedure 1973 - Sections 245, 397, 401 - The Court found that the lower court's dismissal of the complainant's plea to condone absence was improper, failing to provide reasonable opportunity for pre-charge evidence, leading to wrongful discharge of the accused.
Fact of the Case:
The complainant filed a private criminal complaint against the accused, alleging serious offenses. She was absent on the scheduled court date and sought to condone her absence, which the Magistrate dismissed, subsequently discharging the accused for lack of pre-charge evidence.
Finding of the Court:
The Court held that the lower court improperly discharged the accused without allowing reasonable opportunity for the complainant to present evidence, given her valid reasons for absence linked to her passport situation.
Issues: Whether the Magistrate's dismissal of the application to condone the complainant's absence was legally justified and whether the subsequent discharge of the accused was warranted.
Ratio Decidendi: The Court concluded that dismissing the request to condone absence without considering the complainant's circumstances was an error, justifying the remittance of the case for further consideration of pre-charge evidence.
Final Decision: The impugned orders of the lower court were set aside, and the case was remitted for reconsideration.
O R D E R
The prayers in the aforecaptioned Criminal Revision Petition filed under Secs. 397 and 401 of the Code of Criminal Procedure are as follows:
“..... to set aside order dated 17th day of April 2018 in C.C.No.
19/2017 passed by the Judicial First Class Magistrate-II, Kannur and issue any other order or direction as the case may be as this Hon'ble Court may deem fit and necessary in the interest of justice.”
2. Heard Sri.G.S.Krishnan Kartha, learned counsel appearing for the petitioner, Smt.Priya Shanavas, learned Prosecutor appearing for R-1 State of Kerala and Sri.P.U.Shailajan, learned counsel appearing for contesting respondents 2 to R-4.
3. The revision petitioner herein is the complainant and respondents 2 to 4 are the accused persons in Calendar Case, C.C.No. 19/2017 on the file of the Judicial First Class Magistrate's Court-II, Kannur, wherein the offences alleged are those under Secs. 143, 147, 323, 341, 354, 354B, 452 read with Sec. 149 of the I.P.C. The above complaint was posted for pre-charge evidence on 22.4.2017. According to the revision petitioner/complainant, for unavoidable reasons, she could not appear before the trial court on the previous postings on 22.4.2017, 29.4.2017, 20.10.2017 and 31.3.2018, and thereafter, the case was posted to 17.4.2018 for pre-charge evidence. The complainant/revision petitioner submitted an application as Crl.M.P.No. 2295/2018 in the said Calendar Case, C.C.No. 19/2017 on the file of the Judicial First Class Magistrate's Court-II, Kannur praying to condone her absence on that day and the learned Magistrate has dismissed the said application to condone her absence as per the impugned order dated 17.4.2018 on Crl.M.P.No.
2295/2018 in C.C.No. 19/2017, which reads as follows:
“O R D E R This is a petition filed by M.Govindankutty, Advocate for the complainant U/s.309 of Cr.P.C.
Complainant absent. On several occasions, this court directed the complainant to appear. But she did not appear before the court and gave evidence. The specific directions were given to the complainant to appear on 22.4.2017, 29.4.2017, 20.10.2017, 31.3.2018 and on this day to appear and to give pre-charge evidence. But she never appeared. The cause shown for non appearance is not sufficient. Nothing has been produced by the complainant as a document to substantiate her contention of absence and it was for valid cause. Hence petition dismissed.”.
4. In view of the dismissal of the application filed by the revision petitioner to condone her absence on 17.4.2018, as per the abovesaid order, the learned Magistrate has also passed the consequential impugned order dated 17.4.2018, ordering that, by invoking the powers under Sec. 245(2) of the Cr.P.C. all the accused persons stand discharged. The said impugned order discharging the accused persons (contesting respondents 2 to 4) as per order dated
17.4.2018, in C.C.No. 19/2017, reads as follows:
“O R D E R This is a Petition filed U/s. 200 of the Cr.P.C..
Complainant absent. All accused absent. Petition to condone the absence of the complainant dismissed. The case is a case of warrant trial. No pre-charge evidence adduced. Hence I find nothing on record to proceed against the accused.
2. Hence I am of the view that by invoking Sec. 245(2) of the Code of Criminal Procedure 1973 , all the accused can be discharged and accordingly I discharged all the accused U/s. 245(2) of Cr.P.C.”
It is these impugned orders rendered on 17.4.2018 by the learned Magistrate that are under in this revisional proceedings.
5. Sec. 245 of the Cr.P.C. reads as follows:
“Sec.245:- When accused shall be discharged. - (1) If, upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case i
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