Jaseentha vs State of Kerala and Others

V.K. Mohanan, J.—The complainant in a private complaint is the petitioner herein, who seeks leave of this Court to file an appeal against the order dated 4.4.2012 in C.C. No. 60 of 2009 of the court of Judicial First Class Magistrate-I, Attingal, by which the learned Magistrate discharged all the 5 accused u/s 245(1) of Cr.P.C., who faced the prosecution for the offences punishable u/s 454, 380, 341, 323, 427 and 354 of IPC, at the instance of the present petitioner who is the complainant therein. Heard Sri. M. Ramaswamy Pillai, learned counsel for the petitioner and Sri. M.R. Sarin, learned counsel for the respondent, and Smt. Laliza T.Y., learned Public Prosecutor for the State.

When the above matter came up for consideration on 4.10.2012, this Court directed the petitioner to produce the B diary proceedings of the court below and finally, today morning, learned counsel for the petitioner produces the readable copy of the order sheet in C.C. No. 60 of 2009 of the trial court by filing a petition dated 19.12.2012 to accept the document.

Learned counsel for the petitioner submitted that the petitioner was prosecuting the matter vehemently in the trial court and when the case was posted on 4.4.2012, the complainant could not appear before the court and accordingly, the learned Magistrate discharged the accused u/s 245(1) of Cr.P.C. According to the learned counsel, considering the gravity of the offences involved in the case, the petitioner may be granted one more opportunity to prosecute the matter.

On the other hand, counsel for the respondent strenuously submitted that the petitioner was negligent in prosecuting the matter and the complaint was filed against the accused on experimental basis and to harass them. It is pointed out by the counsel for the respondent that for the absence of the petitioner on 4.4.2012, no explanation is forthcoming from the part of the petitioner and therefore the petitioner is not entitled to get the relief as sought for in this petition.

I have carefully considered the submissions of the counsel for the petitioner and the respondent and I have gone through the judgment which is sought to be impugned, for which leave of this Court is sought for and I have also perused the order sheet of the court below. From the above order sheet it can be seen that, as the complainant has miserably failed to appear before the court below on 4.4.2012 and no evidence was adduced in terms of section 244 of Cr.P.C., the learned Magistrate discharged all the accused u/s 245(1) of Cr.P.C. In this juncture it is relevant to note that the complainant was absent on 22.8.2009, 17.8.2010, 28.9.2010, 22.2.2011, 27.3.2012, 29.3.2012 and finally on 4.4.2012. From the endorsement on 22.2.2011 that contained in the proceedings, it can be seen that the learned Magistrate directed the complainant to be present on the next posting date, i.e., on 9.8.2011. But the complainant was absent on all posting dates after 9.8.2011, irrespective of the fact that, on all those dates, the case was posted for recording the evidence of the complainant u/s 244(1) of Cr.P.C. Under the above facts, it can be seen that the complainant was negligent in prosecuting the matter and adducing evidence as directed by the trial court. The complainant was absent not only on the date of the impugned order, but on all previous posting dates also, i.e., on 24.9.2011, on 27.3.2012 and on 29.3.2012, though the case was specifically posted for evidence u/s 244 of Cr.P.C. So the negligence on the part of the complainant is manifest from the above proceedings of the court below. Therefore, I find no fault with the order of the learned Magistrate discharging the accused u/s 245(1) of Cr.P.C. especially when the complainant has failed to adduce evidence u/s 244 of Cr.P.C. against the accused, who were constrained to face the prosecution at the instance of the complainant. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to interfere with the findings of the court below and the order of discharge of the accused, especially when the petitioner had failed to show that the judgment of the trial court is perverse or illegal.

In the result, this Criminal Leave Petition is dismissed.