Kerala High Court
Thithimma vs Amayath Ayisha Beevi on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
CRL.REV.PET NO. 1181 OF 2019
AGAINST THE ORDER/JUDGMENT CC 486/2012 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, PONNANI
CRA 238/2018 OF DISTRICT COURT& SESSIONS COURT,MANJERI
REVISION PETITIONER/RESPONDENTS 1 TO 5/ACCUSED:
1 THITHIMMA
AGED 47 YEARS
D/O.BEERAN, AMAYATHU HOUSE, THAVOOR,
AYAMKULAM.P.O, PONNANI TALUK, MALAPPURAM
DISTRICT, PIN-679594
2 MAIMUNA
AGED 45 YEARS
W/O.IBRAHIMKUTTY, VATTAMMAL, ATHAVANAD PARA,
ATHAVANADU.P.O, TIRUR TALUK, MALAPPURAM
DISTRICT, PIN-676310
3 SAFIYA
AGED 43 YEARS
D/O.BEERAN,THAVANOOR, AYAMKULAM.P.O, PONNANI
TALUK, MALAPPURAM DISTRICT, PIN-679594
4 KHADHIJA
AGED 41 YEARS
D/O.BEERAN, W/O.PARAKKAL HAMEED,
THRIKKANAPURAM, AYAMKULAM.P.O, PONNANI TALUK,
MALAPPURAM DISTRICT, PIN-679594
5 NAFEESA
AGED 35 YEARS
W/O.NISHAD, CHERUPADANNAYIL HOUSE,
NARIPARAMBA.P.O, PONNANI TALUK, MALAPPURAM
DISTRICT, PIN-679573
BY ADVS.
K.B.ARUNKUMAR
SRI.RANJIT BABU
SHRI.SURESH JOSEPH
CRL.REV.PET NO.1181/2019
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RESPONDENTS/APPELLANT & 6TH RESPONDENT/DEFACTO
COMPLAINANT & STATE:
1 AMAYATH AYISHA BEEVI
AGED 50 YEARS
W/O.MUHAMMED, PILALISSERY HOUSE, PERUNTHALOOR,
VETTOM-PALLIPPURAM.P.O, MALAPPURAM DISTRICT,
PIN-676102
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, PIN-682031
BY ADVS.
SRI.A.RANJITH NARAYANAN
SMT.A.SIMI
PP-SRI.PRASANTH M.P
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.REV.PET NO.1181/2019
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SOPHY THOMAS, J
=========================
Crl.Rev.Pet.No.1181 of 2019
==========================
Dated this the 6th day of February, 2024
ORDER
This Criminal Revision is filed at the instance of accused
nos.1 to 5 in CC No.486/2012 of Judicial First Class Magistrate
Court, Ponnani, impugning the judgment in Crl.Appeal
No.238/2018 of Principal Sessions Judge, Manjeri, dated
25.09.2019.
2. The Judicial First Class Magistrate Court, Ponnani,
took cognizance of the offence and framed charge against the
petitioners (accused nos.1 to 5) under Sections 468, 471 and
420, read with Section 34 of IPC, to which they pleaded not
guilty and claimed to be tried. PWs1 to 3 were examined and
Ext.P1 was marked. Since no incriminating evidence was
brought out against the accused, their examination under
Section 313 CrPC was dispensed with. It was stated in the
judgment of the Trial Court that, though coercive steps were
taken against CWs1 and 2, their presence could not be
procured and so their examination was dispensed with. From
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the evidence of PWs1 to 3, the Trial Court found that
prosecution could not prove the offences alleged against the
accused, and so they were acquitted as per judgment dated
08.03.2018, against which the de-facto complainant (CW1)
preferred Crl.Appeal No.238/2018 before the Principal Sessions
Court, Manjeri.
3. As per judgment dated 25.09.2019, the Appellate
Court set aside the judgment of acquittal and remitted back
the case to the Lower Court with a direction to try the case
afresh, after giving the de-facto complainant and other
prosecution witnesses, another opportunity for adducing
evidence. The Appellate Court found that the proclamation
under Section 82 CrPC was not affixed on the house of the de-
facto complainant (CW1). The de-facto complainant came to
know about the acquittal of the case only when the accused
persons filed a written statement in OS No.379/2011 pending
before Sub Court, Tirur. Under such circumstances, the
Appellate Court found that the Trial Court ought not have
dispensed with the examination of CWs1 and 2.
4. Impugning the judgment in Crl.Appeal No.238/2018,
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accused nos.1 to 5 preferred this revision, on the ground that
there was nothing to interfere with the dispensation of
examination of CWs1 and 2, as they did not appear before the
Court in spite of repeated warrants for about thirteen postings.
At last Sections 82 and 83 CrPC steps were also issued against
them.
5. While considering the Crl.Rev.Pet., On 01.11.2019,
this Court called for a report from the Trial Court, as to the
details of summons, warrants, proclamation, etc issued
against CWs1 and 2. The learned Magistrate submitted a
report dated 13.11.2019, stating that warrants were repeated
against CWs1 and 2, as they did not appear on summons.
Thereafter, Sections 82 and 83 CrPC steps were initiated
against them and that was also executed.
6. Learned counsel for the 1st respondent - de-facto
complainant, would say that no summons was received by her
and she was unaware of the warrants, if any, issued against
her, and also about the proclamation, issued from Court. This
Court finds no reason to disbelieve her submission that only
when the petitioners/accused filed a written statement in OS
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No.379/2011 before Sub Court, Tirur, she came to know about
the fact that the accused were acquitted by the trial court,
after dispensing with the examination of CWs 1 and 2.
According to her, CW1 - the de-facto complainant, as well as
CW2, were available in station and there was no obstruction for
them to appear before the learned Magistrate to give evidence,
if they received summons. When the affected parties are very
much available for adducing evidence and when no summons
was properly served on them, and Police did not take any steps
to arrest them or to produce them before Court for
examination, there is no justification to shut out their evidence.
Hence, this Court finds no reason to interfere with the
judgment of the Appellate Court in Crl.Appeal No.238/2018.
7. This Revision Petition is devoid of any merits and
hence dismissed upholding the impugned judgment in
Crl.Appeal No.238/2018. The 1st respondent - de-facto
complainant has to appear before the Judicial First Class
Magistrate Court, Ponnani, on 21.02.2024, to adduce evidence
as CW1. CW1 can produce CW2 also before the learned
Magistrate on 21.02.2024 for her examination, or else CW1 can
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furnish the present address of CW2, so that learned Magistrate
can issue summons to CW2 in her correct address.
8. The Judicial First Class Magistrate Court, Ponnani, is
directed to conduct de-novo trial in CC No.486/2012 by
examining all the witnesses afresh. Since the case is of the
year 2012, learned Magistrate has to dispose the case within 6
months from the date of receipt of a copy of this order.
Registry of this Court is directed to forward a copy of this
order to the Judicial First Class Magistrate Court, Ponnani,
forthwith for compliance and report.
Sd/-
SOPHY THOMAS
JUDGE
ACR
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APPENDIX OF CRL.REV.PET 1181/2019
PETITIONER ANNEXURES
Annexure -1 THE CERTIFIED COPY OF THE PROCEEDINGS
SHEET OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, PONNANI IN C.C NO.
