Allowed

K.S.Ali v. the State of Kerala

Kerala HC11 Nov 2019Crl.Rev.Pet/956/2019

Case brief

AI extract

What is this about?

Single judge ordered the revision petition allowed, set aside discharge order under Section 245(1) Cr.P.C. granted one more opportunity to the petitioner to prosecute the case despite his unexcused absences.

What did the court decide?

Criminal revision petition allowed; impugned discharge order set aside; case restored to lower court with parties directed to appear on 02.12.2019 for further proceedings.

K.S.Ali Vs the State of Kerala — Civil Procedure and Limitation | Kerala HC (2019)

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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 R. NARAYANA PISHARADI

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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Crl.Rev.Pet.No.956 OF 2019

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AGAINST THE ORDERIN CC 1268/2015 DATED 27-05-2019 OF JMFC - VIII, ERNAKULAM

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PETITIONER/COMPLAINANT:

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K.S.ALI AGED 69 YEARS S/O.SYED MOHAMMED, KUPPAKKATTU HOUSE, PANDIT ROAD JUNCTION, KUMBALAM NORTH, ERNAKULAM DISTRICT-682506.

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BY ADV. SRI.SUNIL V.MOHAMMED

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RESPONDENTS/STATE AND ACCUSED:

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1 THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2 PAULACHAN MANIYAMKOT, S/O.KURIAKOSE, GREEN VILLA, KUMBALAM.P.O., KOCHI-682506.

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3 RAJAPPAN, S/O.PAULOSE @ KRISHNAN, KALASSERI HOUSE, KUMBALAM NORTH, KUMBALAM VILLAGE, ERNAKULAM682506.

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4 ASOKAN, AGED ABOUT 46 YEARS, S/O.ACHUTHAN, THARISUMPURAM HOUSE, KUMBALAM, ERNAKULAM682506.

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5 BASHEER, S/O.VASU, NIKARTHIL HOUSE, KUMBALAM, ERNAKULAM682502.

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Crl.R.P.No.956/2019

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6 SABU, S/O.MAMMAN, THURUTHIPARAMBU HOUSE, KUMBALAM NORTH, ERNAKULAM-682506.

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7 OUSEPH, S/O.MARIAM, KALASSERI HOUSE, KUMBALAM VILLAGE, ERNAKULAM-682506.

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8 C.K.GOPI, S/O.KRISHNAN, CHANIYIL HOUSE, KUMBALAM CENTRE, ERNAKULAM-682506.

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9 SABU, S/O.KOCHUKUTTY, KOCHUTHARA HOUSE, KUMBALAM, ERNAKULAM-682506.

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10 JACKSON, S/O.JOSE, NIKARTHIL HOUSE, KUMBALAM, ERNAKULAM682506.

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11 SREEJITH, S/O.SOMAN, PARAKKAD HOUSE, KUMBALAM SOUTH, KUMBALAM, ERNAKULAM-682506.

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R2-11 BY ADV. SRI.C.P.UDAYABHANU R2-11 BY ADV. SRI.NAVANEETH.N.NATH SMT M K PUSHPALATHA-SR PP

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON 11.11.2019 PASSED THE FOLLOWING:

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Crl.R.P.No.956/2019

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R.NARAYANA PISHARADI, J

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Crl.R.P.No.956 of 2019

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Dated this the 11^th day of November, 2019

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O R D E R

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The revision petitioner is the complainant and respondents 2 to 11 are the accused in the case C.C.No.1268/2015 on the file

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of the Court of the Judicial First Class Magistrate-VIII, Ernakulam.

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The lower court had taken cognizance of the offences punishable under Sections 323, 447 and 506(i) read with 34 I.P.C against the accused on the basis of the complaint filed by the revision petitioner. As per the impugned order dated 27.05.2019, the court below discharged the accused under Section 245(1) Cr.P.C, on the ground that, inspite of several adjournments granted, the complainant neither appeared nor adduced evidence under Section 244 Cr.P.C. This revision petition is filed challenging the aforesaid order.

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Crl.R.P.No.956/2019

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Heard learned counsel for the revision petitioner and

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also respondents 2 to 11.

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The plea of the revision petitioner is as follows: He was present in the court on 02.05.2019 but there was no sitting on that day and the case was adjourned to 23.05.2019 by notification. On 23.05.2019, he was absent due to illness. But, unfortunately, his counsel could not make representation before the court on his behalf. According to the petitioner, on 23.05.2019, the case was adjourned to 07.08.2019 and when he appeared before the court on 07.08.2019, the case was not called and on verification of the records, it was found that on 27.05.2019, the impugned order had been passed discharging the accused. It is stated that the absence of the petitioner in the court below on 23.05.2019 was not wilful or deliberate.

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This Court had called for the extract of the

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proceedings sheet in the case and also the photocopy of the A diary for the days 23.05.2019, 24.05.2019 and 27.05.2019 from the court below. These documents show that on 23.05.2019, the petitioner was absent and there was no representation for him

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Crl.R.P.No.956/2019 5

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and the case was adjourned to 24.05.2019 with a specific direction that the petitioner shall be present on that day. On 24.05.2019 also, the petitioner was absent and there was no representation for him and the case was adjourned to 27.05.2019. On 27.05.2019, the impugned order was passed by the court below discharging the accused.

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The entries in the proceedings sheet in the case and also the A diary kept in the court below would show that the plea of the petitioner that on 23.05.2019, the case was adjourned to 07.08.2019, is wrong. The petitioner was absent on the dates 23.05.2019 and 24.05.2019 and there was also no representation for him in the court below and no application was also filed to excuse his absence on those dates. The petitioner has not given any satisfactory explanation for not making any application for excusing his absence on the dates 23.05.2019 and 24.05.2019. He has not shown any reason for his counsel not making any representation on his behalf on those dates.

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However, on the basis of the submission made by the

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learned counsel for the petitioner that, the 'Case Information

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Crl.R.P.No.956/2019 6

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System', had shown that the case stood adjourned to 07.08.2019, this Court had called for the remarks from the learned Magistrate concerned in the matter. In the report dated 27.08.2019, the learned Magistrate has stated that a typographical error had occurred in the update of C.C.No.1268/2015 on 25.01.2019 and instead of entering the date 01.02.2019, the staff made an update with regard to the date of adjournment as 07.08.2019. Therefore, the plea of the petitioner that, the 'Case Information System' showed that the case was posted to 07.08.2019, cannot be altogether ignored.

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In the aforesaid circumstances, I find that one more opportunity can be granted to the petitioner to prosecute the case against the accused. In this context, it may also be noted that, on the hearing dates mentioned above, the accused had also not appeared in person before the court and they were only represented through counsel.

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In the result, the revision petition is allowed and the impugned order is set aside and the case C.C.No.1268/2015 is restored to the file of the court below. The revision petitioner as

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Crl.R.P.No.956/2019

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well as respondents 2 to 11 shall appear before the court below on 02.12.2019, without any further notice from the court below. Thereafter, the court below shall proceed with the case and dispose of it, in accordance with law.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

jsr/08/11/2019

Crl.R.P.No.956/2019

APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE ONLINE-GENERATED COPY OF THE PROCEEDINGS ENTERED IN WWW.ECOURTS.NIC.IN.

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ANNEXURE A2 TRUE COPY OF THE CMP NO.1072/2014 FILED BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.

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RESPONDENTS' EXHIBITS: NIL

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TRUE COPY

K.S.Ali v. the State of Kerala

Case brief

What is this about?

What did the court decide?

K.S.Ali v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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