V.V.George vs State Of Kerala
2022 Latest Caselaw 1339 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                       CRL.A NO. 2364 OF 2007
    [AGAINST THE ORDER OF ACQUITTAL IN C.C. NO.485/2004 DATED
    28.10.2004 OF THE JUDICIAL MAGISTRATE'S OF FIRST CLASS -I,
                             THODUPUZHA]


APPELLANT/PETITIONER/COMPLAINANT:

            V.V.GEORGE, ADVOCATE, THODUPUZHA,
            CHIRAMEL HOUSE,EZHALLOOR, KUMARAMANGALAM VILLAGE,
            THODUPUZHA EAST P.O., IDUKKI DISTRICT.

            BY ADV SMT.AMBIKA C.



RESPONDENTS/STATE & ACCUSED NOS.1 AND 2:

       1    STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM.

 *Died 2    SRI.E.T.MATHEW DY S.P.
            CBCID, ERNAKULAM,FORMERLY PRINCIPAL SUB INSPECTOR OF
            POLICE, THODUPUZHA POLICE STATION,
            THODUPUZHA,C/O.DIRECTOR GENERAL OF POLICE,
            VAZHUTHACAUD, TRIVANDRUM.

       3    SRI.A.M.GEORGECIRCLE INSPECTOR OF
            POLICE, ADIMALY,FORMERLY ASSISTANT SUB INSPECTOR OF
            POLICE, THODUPUZHA POLICE STATION, IDUKKI, C/O.DIRECTOR
            GENERAL OF POLICE, VAZHUTHACAUD, TRIVANDRUM.

            BY ADV SRI.K.V.SABU FOR R2


OTHER PRESENT:

            ADV. SUDHEER GOPALAKRISHANAN - PP




     THIS   CRIMINAL   APPEAL   HAVING     COME   UP   FOR   HEARING   ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No.2364 of 2007                  2

                                     JUDGMENT

The appellant is the complainant in

C.C.No.485/2004 on the file of the Judicial First

Class Magistrate Court-1, Thodupuzha. This appeal is

filed challenging the order of acquittal passed by

the trial court under Section 255(1) of the Cr.PC.

2. The aforesaid case was registered on the

basis of a private complaint submitted by the

appellant herein against respondents 2 and 3 herein

for the offences punishable under Sections 341, 323

r/w. 34 of the Indian Penal Code.

3. The allegations against the respondents are

as follows:

The appellant herein who is an Advocate

practicing at Thodupuzha was taken into custody

forcibly on 11.10.1990 by the 3rd respondent/2nd

accused as per the instructions of the 2 nd respondent/

1st accused. The 2nd respondent and the 3rd

respondents herein were the Principal Sub Inspector

of Police and Assistant Sub Inspector of Police

respectively of Thodupuzha Police Station at the

relevant time. Later, the appellant was kept in the

police station and he was manhandled by the said

respondents. The aforesaid complaint was submitted

in such circumstances.

4. Upon receipt of summons, respondents/accused

appeared before the court and took bail. However, on

25.8.2003, the learned Magistrate acquitted the

accused persons on the ground that the complainant

was not present before the court. Challenging the

order of acquittal, an appeal was submitted by the

appellant as Criminal Appeal No.353 of 1994. The said

appeal was allowed by this Court by setting aside the

order of acquittal passed by the lower court and the

matter was remanded back for fresh disposal. The

parties were directed to appear before the court on

5.1.2004.

5. Thereafter, summons was issued to the

respondents again and they appeared. However, after a

series of postings, the learned Magistrate acquitted

the accused under Section 255(1) of the Cr.PC as the

appellant failed to adduce evidence in support of the

prosecution by making himself available and by not

producing the witnesses in support of the

prosecution. This appeal is filed challenging the

aforesaid order of acquittal.

6. Heard Smt. Ambika C. learned counsel for the

appellant, Sri. K.V.Sabu, the learned counsel

appearing for the 2nd respondent and Sri.Sudheer

Gopalakrishnan, the learned Public Prosecutor for the

State. Even though notice was served upon the 3 rd

respondent, there is no appearance for the 3rd

respondent.

7. The learned counsel for the 2nd respondent

submitted that the 2nd respondent/1st accused is no

more. In such circumstances, the proceedings as

against the 2nd respondent is abated.

8. The learned counsel for the appellant

contends that, the appellant could not appear before

the court below when the matter was posted, as he was

abroad at the relevant time. The counsel prayed time

for contesting the matter on merits. However, on

going through the observations made in the impugned

judgment it can be seen that, ample opportunities

have been granted by the court to the appellant for

adducing evidence in support of the prosecution. In

paragraph 5 of the aforesaid judgment the proceedings

of the court at various stages have been elaborately

stated. It is evident therefrom that on 18.9.2004 the

accused persons appeared and were granted bail.

Thereafter, the particulars of the offences were read

over to them, to which, they pleaded not guilty.

Thereafter, the case was being posted for appearance

of the complainant on several occasions. It is

discernible from the records that, five postings are

seen granted to the appellant for production of the

witnesses in support of the prosecution. Even though

the appellant was represented through counsel, he

neither appeared before the court nor produced any

witnesses in support of the prosecution. The learned

Magistrate passed the impugned order in such

circumstances. While dismissing the aforesaid

complaint and acquitting the accused, the learned

Magistrate also taken note of the fact that, on

earlier occasion also the complaint was happened

to be dismissed for want of prosecution and a further

opportunity was granted by this Court, by allowing

the appeal and remanding the matter with a

specific direction that, the trial has to be

completed expeditiously. Despite granting a further

opportunity, the appellant failed to utilize the

same. This is a complaint submitted in the year 1992

in respect of an incident occurred in the year, 1990.

The 1st accused is no more. Considering the lapses on

the part of the appellant in prosecuting the case

despite granting ample opportunities, no legal

infirmity can be found in the order passed by the

learned Magistrate.

In such circumstances, I do not find any merit in

this appeal and accordingly it is dismissed.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk