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Madras High Court · body

2014 DIGILAW 2021 (MAD)

S. Shanmuganathan v. P. Umadevi

2014-07-08

M.VENUGOPAL

body2014
Judgment 1. The petitioner/appellant has projected the present original petition as against the order dated 11.10.2013 in C.C.No.295 of 2007 passed by the learned Judicial Magistrate No.I, Pollachi. 2. Learned Judicial Magistrate No.I, Pollachi, while passing the order on 11.10.2013 in C.C.No.295 of 2007, has observed the following “The complainant is continuously absent from appearing before this Court. This Court has also issued a final notice to the complainant. Even after the receipt of final notice also the complainant has not appeared before this court today. Hence this court is of the view that the complainant is not willing to conduct case properly. Hence this Court further is of the view that complaint shall be dismissed” and resultantly dismissed the complaint under Section 256(1) of Criminal Procedure Code thereby acquitting the accused from the charges. 3. As against the said order of dismissing the complaint under Section 256(1) of Criminal Procedure Code passed by the trial Court, the petitioner/appellant seeks permission of this Court to grant him Leave to prefer the Criminal Appeal. 4. Learned counsel for the petitioner submits that the trial Court has committed an error in acquitting the Respondent/Accused without even considering his admission towards liability. Furthermore, it is the stand of the petitioner that because of his non appearance in C.C.No.295 of 2007 on the file of the learned Judicial Magistrate No.I, Pollachi, an order was passed dismissing the complaint filed by him and consequently the Respondent/Accused was acquitted of the charges. 5. The prime contention advanced on behalf of the petitioner is that he has a fair chance of success in the Appeal and has been advised so in this regard. 6. The provision seeking Leave to Appeal is an order to ensure that no frivolous Appeals are filed against the Judgment of acquittal as a matter of routine. 7. It cannot be lost sight of that the Hon'ble High Court shall not dismiss a Leave to Appeal petition in limine without ascribing necessary reasons therefor. Moreover, in an Appeal against the acquittal, the Hon'ble High Court shall not refuse leave application without ascertaining reasons and without giving reasons in accordance with law. 8. 7. It cannot be lost sight of that the Hon'ble High Court shall not dismiss a Leave to Appeal petition in limine without ascribing necessary reasons therefor. Moreover, in an Appeal against the acquittal, the Hon'ble High Court shall not refuse leave application without ascertaining reasons and without giving reasons in accordance with law. 8. It is to be borne in mind that in an Appeal against an order of acquittal under Section 256(1) of Criminal Procedure Code, the Hon'ble High Court ought to examine the sufficiency of the cause assigned by the complainant for his absence in the Court. 9. The objection regarding the maintainability of an Appeal can be raised at any stage and permission, which was granted earlier for preferring an Appeal, could not be pleaded as a bar at the time of hearing of the main Appeal. Indeed, when real facts are brought to the notice of the Court, just because as the Leave was granted, it does not preclude a Court of Law to go into the issue whether an Appeal is maintainable in law. 10. Inasmuch as the petitioner is seeking permission of this Court by filing the present criminal original petition seeking Leave to prefer an Appeal, this Court with a view to examine/ascertain the conclusion arrived at by the trial Court in dismissing the complaint by exercising its judicial discretion allows the present criminal original petition in the subject matter in issue, in the interest of justice.