Dismissed

State of Kerala v. Devadas.K.

Kerala HC18 Feb 2016CRL.A/1563/2004

Case brief

AI extract

What is this about?

In criminal appeal No. 1563 of 2004, the High Court of Kerala dismissed an appeal by the complainant against the acquittal under Section 256(1) Cr.P.C., upholding the magistrate's order due to the complainant's repeated non-appearance without valid explanation.

What did the court decide?

The criminal appeal was dismissed; the order of acquittal and acquittal order of the lower court were affirmed.

State of Kerala Vs Devadas.K. — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937

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CRL.A.NO. 1563 OF 2004 ( )

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AGAINST THE ORDER IN ST NO.6652/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA DATED 12-03-2004

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APPELLANT(S)/COMPLAINANT:

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THE INSPECTOR OF FACTORIES AND BOILERS GRADE-II, IRINGALAKUDA.

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BY GOVERNMENT PLEADER

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RESPONDENT(S)/ACCUSED:

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K. DEVADAS, OCCUPIER AND MANAGER, NIRMAL DIAMONDS, KANATHUKUNNU P.O., VELLENGALLUR, MUKUNDAPURAM TALUK.

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BY ADVS. SRI. N.SURESH

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SRI.D.ANIL KUMAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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Crl. Appeal No.1563 of 2004

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Dated this the 18^th day of February, 2016

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J U D G M E N T

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This appeal is preferred against the order of

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acquittal in S.T. No.6652 of 1999 of the Judicial First Class Magistrate Court, Irinjalakuda by the complainant, who is the Inspector of Factories and Boilers, Gr.II, Irinjalakuda. The case against the accused is that he filed a complaint before the Judicial Magistrate, Irinjalakuda under Sec.105(1) of the Factories Act 1948 against the respondent. The complaint was taken on file and summons was issued to the accused. In spite of several adjournments, the accused never appeared in the trial court. Finally, the case was posted to 01.03.2004. On that date, there was no sitting. Therefore, the case was again posted to 19.03.2004. The appellant could not know about the posting dates. Finally, on 12.03.2004, the learned Magistrate dismissed the complaint and acquitted the accused on the ground of non appearance of the complainant. Hence he preferred this appeal.

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Crl. Appeal No.1563 of 2004 2

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Heard the learned counsel appearing for the

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appellant and the learned counsel appearing for the first respondent.

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Sec.256 of the Code of Criminal Procedure

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reads as follows;

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“ Non appearance or death of complainant : - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

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Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

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(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. ”

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From the above provision, it is clear that

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discretion has been given to the Magistrate for dispensing the appearance of the complainant and accused. While exercising such a discretion, there are valid grounds for the non appearance and adjourning the

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case to some other day. The Magistrate has to apply his

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discretion and adjourn the case to some other day, if the

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Crl. Appeal No.1563 of 2004 3

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complainant is absent for several days. When the case is called out and no reasons are shown to the court for his absence, it would be presumed that the complainant is absent because he is not interested in prosecuting the matter. In this appeal also, no valid grounds are stated by the appellant for his non appearance on 12.03.2004. The lower court records show that on 06.03.2004, 09.03.2004 and 11.03.2004 the complainant was absent and no representation on those days. Subsequently on 12.03.2004, when there was no appearance and no representation, the accused was acquitted under Sec.256(1) Cr.P.C. The records show that the power under this section has been judicially and judiciously used by the learned Magistrate while disposing the above case.

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There is no merit in this appeal and it is dismissed accordingly.

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Sd/- P.D. RAJAN, JUDGE / True Copy / P.A. To Judge

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NS/20/02/2016

State of Kerala v. Devadas.K.

Case brief

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State of Kerala v. Devadas.K.

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