KELA ETTIATHI Vs. ETTIATHI NARAYANAN

JUDGEMENT

(1.) THIS revision petition is brought from the decision of the lower appellate Court setting aside the conviction of five accused persons under Sections 450 and 507, Travancore Penal Code, and directing their acquittal. The learned Counsel for the complainant who is the petitioner here invites the attention of the Court to the provisions of Section 349, Clause (2) of the Travancore Code of Criminal Procedure. The petitioner's case is that in the Magistrate's Court, the prosecution was started on a private complaint and the complainant was in charge of the case for the prosecution in that Court. The Magistrate convicted the accused and sentenced each of the accused to a fine of Rs. 20. They appealed to the Sessions Judge of Parur and when that appeal was filed, instead of giving notice to the complainant, the learned Judge gave notice to the Public Prosecutor who appeared at the hearing of the appeal. On hearing the advocate for the accused-appellants and the Public Prosecutor, the lower appellate Court decided the case arriving at the conclusion that the accused are entitled to an acquittal. According to Section 349 (2) "the appellate Court may in summons or compoundable cases give notice to the complainant. "

(2.) THE first clause of the section refers to notice to be given to the officer appointed by the State to receive such notice, meaning thereby the Public Prosecutor in criminal cases. But according to Sub-section (2), where the offence is compound-able as in the present case, there is provision made for giving notice to the complainant. It is alleged that failure to give notice to the complainant is an error of law which would Justify interference with the decision arrived at by the tower appellate Court.

(3.) ON behalf of the accused, their learned Counsel points out that the provisions of Section 349, Sub-section (2) are not mandatory. What the clause lays down is "the appellate Court may give notice to the complainant" where it is a summons case or where it is a compoundable case. Moreover, there is Section 446 which is intended to cure irregularities and defects which have not occasioned a failure of Justice. In my Judgment, both these contentions seem to be well founded. There is no violation of any mandatory provision by the Court below. The Public Prosecutor who was competent to appear in the case was given notice and on hearing the Public Prosecutor, the case was disposed of by the lower appellate Court in a Judgment in which the evidence has been fully discussed. In these circumstances I see no reason to interfere and dismiss this criminal revision case.