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State of Kerala Vs. Thomma Kochuthoma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 231 of 1958
Judge
Reported in1959CriLJ1322
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 5, 247 and 404; Travancore Cochin Forest Act, 1951
AppellantState of Kerala
RespondentThomma Kochuthoma and ors.
Appellant AdvocatePublic Prosecutor
Respondent Advocate A.V. Moothedan and; T.P. Ittoop, Advs.
DispositionAppeal dismissed
Cases ReferredChinnakonda Reddi v. Seshi Reddi
Excerpt:
- - we wish to point out our strong disapproval of the action of the complainant in writing to the magistrate for information regarding the case. 4. the learned public prosecutor brought to our notice two decisions of the madras high court in support of his argument that in a case like this when the complainant has not been notified of the date of posting, the court should not treat him as absent and should give him a further opportunity to appear......a case under the travancore-cochin forest act. the case was posted for trial on 8-3-1958 on which date the range officer who charged the case was absent. the learned magistrate acquitted the accused under section 247 of the code of criminal procedure.it is contended on behalf of the state that the court was not justified in acquitting the accused as the absence of the range officer on the date of hearing was due to the fact that he was not aware of the date of posting. it is stated on behalf of the appellant that though the charge report was filed on 24-2-1958 the case was not taken on file that day and that the range officer was not aware whether it was subsequently taken on file and posted for evidence. it is therefore contended that the complainant could not be deemed to have been.....
Judgment:

Joseph, J.

1. This is an appeal by the State against the order of acquittal by the 1st Class Magistrate, Chalakudy in a case under the Travancore-Cochin Forest Act. The case was posted for trial on 8-3-1958 on which date the Range Officer who charged the case was absent. The learned Magistrate acquitted the accused under Section 247 of the Code of Criminal Procedure.

It is contended on behalf of the State that the Court was not justified in acquitting the accused as the absence of the Range Officer on the date of hearing was due to the fact that he was not aware of the date of posting. It is stated on behalf of the appellant that though the charge report was filed on 24-2-1958 the case was not taken on file that day and that the Range Officer was not aware whether it was subsequently taken on file and posted for evidence. It is therefore contended that the complainant could not be deemed to have been absent on that day,

2. Shri Moothedan learned counsel for the respondents raised a preliminary objection that the appeal was incompetent as the Travancore-Cochin Forest Act did not provide for an appeal either from a conviction or acquittal of an offence under the said Act. This objection is unsustainable. The case was to be tried by the Magistrate under the Code of Criminal Procedure and it is the code which regulates the procedure and provides for appeal, revision etc. There are several enactments which make certain acts offences and prescribe penalties for the same.

Once that is done and the prosecution is launched, the subsequent procedure is governed not by these enactments but the Code of Criminal Procedure. Reliance was placed by Shri Moothedan on a decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, Bengal v. Luchmi Narayan, AIR 1933 Cal 776 (1). That was a case of a prosecution under Bengal Act XII of 1932 and the offence was triable by a special Magistrate. It appears from the judgment that Act XII of 1932 was supplemented bv another Act XXIV of 1932, Section 5 of which precluded an appeal from the decision of the Special Magistrate, This decision has no application to this case. The preliminary objection is therefore overruled.

3. Coming to the merits, it is necessary to refer to what transpired before the acquittal of the accused. The charge report was filed on 24-2-1958. It was not immediately taken on the file but on 7-4-1958 the Magistrate ordered summons to the accused to appear on 24-4-1958. The complainant did not appear that day but the accused appeared and were released on bail. The case was then posted to 8-5-1958 for prosecution evidence. The accused were present on that day also but the complainant was again absent and thereupon the Magistrate acquitted the accused.

The learned Public Prosecutor who appeared on behalf of the State contended that as the complaint was not taken on the file as soon as it was presented, the complainant was not aware of the latter osting. It is seen that on 24-4-1958, the date posted or appearance of the accused, the complainant wrote a letter to the Magistrate asking him to inform him of the date of posting. No reply was sent to this and the Magistrate was not bound to send a reply either. We wish to point out our strong disapproval of the action of the complainant in writing to the Magistrate for information regarding the case.

The learned Public Prosecutor stated that the Range Officers may not be aware of the impropriety of such a step. We do not consider this a valid excuse. If instead of adopting the extra-ordinary course of writing to the Magistrate for information, the Range Officer had made enquiries in Court, he could have found out the date of hearing of the case. In these circumstances we consider that the responsibility for what has transpired must be placed on the Range Officer who was in charge of the case.

4. The learned Public Prosecutor brought to our notice two decisions of the Madras High Court in support of his argument that in a case like this when the complainant has not been notified of the date of posting, the Court should not treat him as absent and should give him a further opportunity to appear. The first decision is in Nune Panakalu v. Ravula Subba Rao, AIR 1928 Mad 1158. The facts of the case show that the decision has no application to this case. What happened in that case was that the records were called up by the District Magistrate from the trial Court for the purpose of a revision petition and that when the records were received back, the trial Magistrate issued fresh summons to the accused and a notice to the complainant, informing them of the date of hearing.

The notice to the complainant was returned unserved. On the date of hearing his counsel filed an application for adjournment stating that his client had gone to Bombay and Ahmedabad. that the notice was not served on him and that he was not aware of the date of posting. The Magistrate refused the prayer for adjournment and dismissed the complaint under Section 203 of the Code. It was held that the case did not stand adjourned to the date on which it was dismissed within the meaning of Section 247 of the Code. The other decision is Thippa-reddigari Chinnakonda Reddi v. Seshi Reddi, AIR 1954 Mad 889, which was a case in which the complaint was dismissed under Section 203 without an investigation or enquiry under Section 202. These decisions, in our opinion, are not applicable to this case.

5. No other point arises in this appeal. Wetherefore confirm the order of acquittal and dismissthe appeal


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