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2017 DIGILAW 646 (KER)

C. A. Rajan v. State of Kerala

2017-04-03

ALEXANDER THOMAS

body2017
ORDER : Alexander Thomas, J. The order under challenge in this revisional proceedings is one passed by the Chief Judicial Magistrate's Court, Palakkad, whereby the complaint in S.T. No.339/2015 has been dismissed by the said court, on account of the complainant not-furnishing the correct address of the accused. This revision was admitted by this Court on 31.10.2016 and notice was also ordered to R-2 (accused) by speed post returnable within 2 weeks. Notice to R-2 has been returned being signed by his father with the endorsement that now R-2 is working in a gulf country. The Circle Inspector of Police, Town South Palakkad, has also submitted a report dated 5.3.2017 to the Registry of this Court stating that they had taken out notice on R-2, but the Police official concerned was appraised by one Sri. Kutty Sankaran, the father of R-2, that R-2 is now working in a gulf country and that the notice on R-2 has been duly received by his father. Since notice has been duly taken out to R-2 (accused) in the address as shown in the complaint and since summons issued by the trial court was also duly served on the accused in the said address, it is only to be ordered that notice on R-2 (accused) has been duly completed in these proceedings. 2. Heard Sri. P.K. Ravi Sankar, learned counsel appearing for the revision petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor for R-1 State. 3. One of the points to be determined is as to whether the said impugned order is traceable to Section 256 of the Cr.P.C. or to Section 204(4). If the impugned order is relatable to Section 256(1), then the remedy conferred is to seek leave of this Court to prosecute a criminal appeal by virtue of the provisions contained in Section 378(4) of the Cr.P.C., in which case, because of the bar engrafted in Section 401(4), the revisional remedy will be barred. The petitioner has averred that summons was duly served on the accused and that he had entered appearance through a counsel after filing vakalath. Therefore, ordinarily where the accused has entered appearance after due service of summons, then the stage of Section 204(4) would have crossed. The petitioner has averred that summons was duly served on the accused and that he had entered appearance through a counsel after filing vakalath. Therefore, ordinarily where the accused has entered appearance after due service of summons, then the stage of Section 204(4) would have crossed. Sections 204(4) and 256 of the Cr.P.C. read as follows: Sec.204(4): "Sec. 204: Issue of process - (1) ......xxx xxx xxx (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint." Sec. 256 of Cr.P.C. "Sec.256: 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 hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: 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. (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." 4. The learned Magistrate has also submitted a report dated 24.3.2017 before this Court stating that the counsel for the accused filed vakalath along with absent petition on 17.9.2015 and subsequently, as there was no representation for the accused and the accused has not entered appearance, non bailable warrant was issued against the accused and the NBW was returned unexecuted stating that the accused is not staying in the given address and his present whereabouts is not known and therefore the complainant was directed to furnish the correct address of the accused. That in spite of giving three chances, the complainant failed to produce the correct address of the accused. That in spite of giving three chances, the complainant failed to produce the correct address of the accused. Though the impugned order also refers to absence of the complainant, the main ground on which the complaint has been dismissed, is due to the complainant not furnishing the correct address of the accused. Therefore, in the facts and circumstances of this case, the jurisdictional facts stipulated in Section 256(1) for acquittal of the accused also do not arise as the main ground on which the complaint has been dismissed is not on account of the absence of the complainant, but only due to the complainant not furnishing the correct address of the accused. The said ground is in a way more akin to the grounds envisaged in Section 204(4) in the matter of the complainant not taking steps for process fee, etc. The top portion of the impugned order reads as "FORM OF ORDER OF WITHDRAWAL OF THE COMPLAINT". It appears that the learned Magistrate has proceeded as if it is a case of withdrawal of the complaint. Section 257 of the Cr.P.C., which deals with withdrawal of the complaint, reads as follows: "Sec.257: Withdrawal of complaint.- If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn." 5. Merely because the complainant has not been able to furnish the correct address of the accused, which even the Police could not properly verify, cannot be a situation of withdrawal of the complaint. For withdrawal of the complaint, there should be a conscious motion made by the complainant that he intends to withdraw the complaint and he should also be able to satisfy the magistrate that there are sufficient grounds for permitting to withdraw his complaint against the accused and only thereafter that the magistrate can permit the complainant to withdraw the same, in which case, the magistrate should also acquit the accused, if so withdrawn. Therefore, the impugned order will not also come within the scope of Section 257. 6. Therefore, the impugned order will not also come within the scope of Section 257. 6. The learned Magistrate has reported that non-bailable warrant issued against the accused was returned unexecuted by the Police stating that the accused is not staying in the given address. The fact of the matter remains that the summons was duly served on the accused and the accused had also entered appearance through a counsel after filing vakalath. The learned Magistrate could have easily directed the counsel appearing for the accused to furnish the correct address. Where even the Police, who were under the bounden duty to execute the non bailable warrant, could not effectively find out the correct address, the magistrate has expected too much from the complainant to furnish the address of the accused. The learned magistrate should have taken note of the crucial fact that summons was duly served on the accused in the address as shown in the cause-title of the complaint and that the Advocate had also appeared for the accused after filing vakalath on behalf of the accused. It is pointed out by the learned counsel appearing for the revision petitioner that the said vakalath has also shown the address of the accused, which is the same as the one shown in the complaint as well as the cause-title of this revision petition. Accordingly, this Court has no hesitation to hold that the dismissal of the complaint by the learned magistrate as per the impugned order merely on the ground that the complainant has not been able to furnish the correct address of the accused, is one passed without jurisdiction. However, the fact of the matter remains that the dismissal of the complaint on account of the reason shown in the present impugned order will have effect of finality inasmuch as the complaint itself will stand finally terminated due to the dismissal of the complaint. Therefore, the impugned order cannot be said to be interlocutory in nature and would, in substance and essence, amount to an order of finality in as much as it results directly and inevitably in the termination of the entire criminal proceedings. Therefore, the impugned order cannot be said to be interlocutory in nature and would, in substance and essence, amount to an order of finality in as much as it results directly and inevitably in the termination of the entire criminal proceedings. Therefore, since the impugned order is in the nature and character of a final order and not that of a interlocutory one, the same is revisable in terms of Section 397 of the Cr.P.C. As already held herein above, as the impugned order does not come within the four corners of Section 256, it cannot be said to be an order, on which leave to appeal could have been sought. For all these reasons, this Court is of the view that the revision is maintainable. 7. As this Court has already held that the said impugned order is one, which is passed without jurisdiction, the same is set aside and the complaint will stand restored back to the file of the learned magistrate. The complainant and his counsel will personally appear before the learned Magistrate at 11 a.m. on 22.4.2017, on which day, the learned magistrate shall proceed with the complaint, in accordance with law. The Circle Inspector of Police, Town South Palakkad, has already furnished a report dated 5.3.2017 before this Court stating that it has been borne out in their inquiry that the accused is now working in a gulf country and that his father has accepted the notice issued from this Court. The learned Magistrate will be at liberty to direct the Police authorities concerned to make an effective inquiry so as to ascertain the present correct address of the accused and then proceed with the matter, in accordance with law. 8. With these observations and directions, the Revision Petition stands finally disposed of.