E P KURIAN Vs. N KUTTAPPAN NAIR

JUDGEMENT

(1.) S.249 of the Criminal Procedure Code reads:-

(2.) The question for consideration in this Criminal Revision is only whether both the conditions must co-exist or whether one of the conditions alone is sufficient for the Magistrate to get jurisdiction to discharge the accused in the absence of the complainant. Whether the judicial discretion has been properly exercised or not cannot be the moot point because both the Magistrate and the Addl. Sessions Judge agreed for valid reasons that the private complainant absented himself continuously in an attempt to protract the proceedings. Therefore if the discharge of the accused was with jurisdiction under S.249 it must stand, otherwise not.

(3.) The private complaint, C.C. 242 of 1979 filed by the first respondent before the Judicial First Class Magistrate, Kayamkulam against four accused, of whom petitioners are accused 1 to 3, was taken to file for offences punishable under S.447 and 506(ii) read with S.34 of the Indian Penal Code and the accused were discharged under S.249 of the Criminal Procedure Code, for the absence of the complainant. In Criminal Appeal 68 of 1981 the Addl. Sessions Judge, Mavelikkara found that in view of the decision reported in Joy v. Abraham, 1967 KLT 800 , the discharge cannot be sustained. Therefore, the order was set aside and the case remanded.