MOIDEEN KUNHI Vs. KUNHIPPU
HIGH COURT OF KERALA
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(1.) This revision petition has been filed by Pw. 1 in C. C. 191/65; Second Class Magistrate's Court, Kasaragod. The petitioner filed a complaint against respondents 1 to 5 in this case charging them of the offences under S.143, 447, 427 and 379 read with S.34 I. P. C. The learned trial magistrate found that these respondents were guilty of the offences charged against them and sentenced each of them to pay a fine of Rs. 50/-under each count. Respondents 1 to 5 filed Crl. Appeal No. 29/66 before the Sub Divisional Magistrate, Hosdrug. This appeal was filed on 3 3 1966, and notice was issued to the Assistant Public Prosecutor on the same day and the appeal was posted for the appearance of the appellants, namely respondents 1 to 5 herein to 24 3 66. I am told at the bar that it is not the practice of that court to bear an appeal on the date when it is posted for the appearance of the appellants. Further, it is seen from a certified copy of the Judgment of the lower appellate court that the case was heard on the same date, and judgment was pronounced on 26 3 66, accepting the appeal and acquitting respondents 1 to 5 of the offences for which they were convicted by the lower court. The petitioner's complaint is that the Assistant Public Prosecutor, as he was not ready to have the appeal heard on 24 3 66, moved the lower appellate court for an adjournment of the hearing, which that court refused. On learning that respondents 1 to 5 alone were heard by the lower appellate court and the hearing was closed without hearing the Assistant Public Prosecutor, the petitioner appeared before the lower court on the next day and filed a petition praying that, under the above circumstances, the counsel, whom he had engaged may be heard before judgment was pronounced in the case. The lower appellate court disposed of this petition on the same date. In his order he states that after the conviction the defacto complainant has no right to be heard, and as the Assistant Public Prosecutor was representing the case on behalf of the State, it was not correct to say that the State was not represented, and that there was no bona fides in the application made by the petitioner. This is a perverse way of disposing the matter.
(2.) The State Prosecutor appearing on behalf of the State in this Court accepted the correctness of the statements contained in the revision petition and made before me by the petitioner's learned counsel. Therefore, the position is that the learned magistrate showed an unwarranted haste in disposing of the appeal, even without giving a chance for the State to be heard; and the statement in the order that the application made by the petitioner before him was not bona fide and the State was represented by the Assistant Public Prosecutor does not seem to be a correct statement of the position to say the least. Nobody contends that a complainant in a private case has pot a right of hearing before an appellate court in an appeal filed by the accused. But then, it is essential for a proper administration of justice that the parties before that court should be heard; and it is this elementary justice that has been denied by the lower appellate court.
(3.) Two decisions have been placed before me by the learned counsel for the petitioner in support of his contention that the judgment sought to be revised should be set aside and the case sent back to the lower court for a disposal of the matter after hearing the parties interested in the matter. In Paragji Dhulabhai v. Bhagwanji (AIR 1940 Bombay 14) Chief Justice Beaumont pronouncing the Judgment of a Division Bench dealt with a very similar matter and held that:
"...and nobody but the Crown is emitted to be heard, because no private citizen is technically interested in upholding a conviction. The true rule, which should be followed in all Courts, is that in private prosecutions the Court in its discretion may allow the complainant to appear by an advocate, but it is not in any case bound to do so."
The learned Judges set aside the judgment complained of in that case and sent back the case to the lower court to dispose of the same after hearing the advocate for the complainant in case the lower court thinks that it was necessary to do so in the interests of justice. The same view has been followed by the Judicial Commissioner's Court in Tarapore v. Emperor (AIR 1942 Sind 5).;
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