Joseph vs Anchalo Fernandez

Kunhiraman, C.J.—Calendar case No. 2281 of 1123 was tried by the Stationary Second Class Magistrate, Trivandrum City. The case was started at the instance of the complainant whose child, aged 2� years, was said to have been knocked down by the accused, who was riding on a motor cycle. The charge against the accused was under Travancore Penal Code - Sections 277 and 337. On 25-7-1124, to which date the case was posted after it had become part-heard, the complainant''s name was called and he was not present. For that reason, the Magistrate acquitted the accused under Travancore Criminal Procedure Code - Section 244. This revision case is from the orders of the Magistrate.

The learned Counsel appearing for the complainant Petitioner states that the complain, ant is a public servant, that his evidence was already recorded on a previous date when the case came on for hearing and that his personal attendance was not necessary on the date on which the order of acquittal was passed by the Magistrate. It appears from the order of the Court below that the complainant was represented by Advocate. It is stated that the Advocate was present when the case was called. According to the proviso to Section 244 :

Where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance and proceed with the case.

There is nothing said in the order of the Magistrate as to whether the personal attendance of complainant in this case was necessary on the date on which be acquitted the accused u/s 244. It is represented that on the same date sometime after the accused was acquitted, there was a petition presented on behalf of the complainant for dispensing with his personal attendance in Court as he was engaged in discharging his duties as a public servant. Since that petition was presented after the acquittal of the accused, it was merely recorded and no orders were passed on it. 3. From the above facts we are satisfied that the Magistrate, in acquitting the accused u/s 244, did not exercise a judicial discretion. The first part of Section 244 says that if the Magistrate is satisfied that it is proper to adjourn the hearing of the case to some other day; he should not acquit the accused. There is nothing said in the order of the Magistrate from which we can infer that he was satisfied that it was not proper to adjourn the case to some other day. If the complainant''s evidence was already recorded, there was no necessity for the complainant to be personally present especially when he bad engaged an Advocate to represent him. In these circumstances we are constrained to set aside the order acquitting the accused, passed by the trial Court. We direct that the case be restored to the file, of the Court below and disposed of according to law.