N DINESAN Vs. K V BABY

JUDGEMENT

(1.) The short point that arises for consideration in this Criminal Revision is: On a day when a private complaint was posted for evidence neither the complainant nor any witness was present. The complainants petition for adjournment and to excuse absence was allowed. The accuseds application to dispense with personal attendance for that day and permit him to appear by his pleader was rejected. Can it be said that the Magistrate exercised his discretion judicially and in accordance with settled principles of law?

(2.) The respondent, a Nursery School Teacher filed a private complaint against the petitioner and another under Section 494 Indian Penal Code before the Judicial Magistrate of the First Class, Cochin. On a warrant issued by the Magistrate the petitioner was arrested by the police. On 3-10- 1979 the petitioner appeared before the Magistrate and took bail. The petitioner got a job in Muscat and left Cochin on 22-12-1979. The case came up for trial on 12-2-1980. The complainant applied for adjournment. On behalf of the petitioner-accused an application was filed to dispense with his personal attendance on 12-2-1980 and to permit him to appear by pleader on that day. The learned Magistrate allowed the application for adjournment but rejected the application filed on behalf of the petitioner. A non-bailable warrant was also issued for the arrest of the petitioner. Accordingly the petitioner was deported from Muscat on 29-2-1980. The petitioner has challenged the above order on the application to permit him to appear by pleader in this Criminal Revision.

(3.) Sections 273 and 317 of the Code of Criminal Procedure 1973, for short the Code, read: Court has already spoken. In Madhu Limaye v. State of Maharashtra1 the Supreme Court said: On a harmonious construction it should be held that the bar provided in Section 397(2) operates only in exercise of the revisional power of the High Court, meaning thereby, that the High Court will have no power of revision in relation to any interlocutory order. But in such a case, the inherent power will come into play there being no other provision in the Code for the redress of the grievance of the aggrieved party. In case the impugned order clearly brings out a situation which is an abuse of the process of the Court, or for the purpose of securing the ends of justice interference of the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power of the High Court. So it cannot be said that the High Court is powerless in this matter. But is has to be noted that the impugned order has worked itself out and the harm done cannot now be undone. So no purpose will be served by interfering with the order at this distance of time. This is also a reason for not interfering with the impugned order. The Criminal Revision is hence dismissed. Criminal Revision dismissed.