VELLAIYAN Vs. PERIYANNAN

JUDGEMENT

(1.) THIS appeal is directed by the complainant in C. C. No. 213 of 1980 on the file of the Judicial Second Class Magistrate, Namakkal, on being aggrieved by the order of acquittal of accused 1 to 13 acquitting the accused of the offences punishable under sections 147 and 323, Indian Penal code, by application of section 256, Criminal Procedure Code.

(2.) THE brief facts of the case, as seen from, the affidavit filed by the appellant as well as the documents available before this court, can be stated as follows: THE above case was the result of a private complaint preferred by the appellant on the allegation that on 11th June, 1980, he and four others sustained injuries as a result of the attack perpetrated'by the respondents'accused using sticks, stones and cycle chains. In respect of the, same occurrence, a complaint has been filed by one of the accused before the Sendamangalam Police which after investigation of that case has filed a charge-sheet against the appellant and 10 others for offences under sections 147, 341 and 324, Indian Penal Code, and the said case is how pending before the Sub-Divisional Judicial Magistrate, Sankari, in C. C. No. 631 of. 1980. THE complaint given by the appellant before the Judicial Second Class magistrate was numbered as C. C. No. 213 of 1980. As both the cases arose out of the same transaction, the appellant herein filed a petition under section 410, criminal Procedure Code, before the learned Chief Judicial Magistrate Salem, praying for the transfer of the case in C. C. . No. 213 of 1980 from the file of the Judicial Second Class Magistrate, Namakkal, to the file of the sub-Divisional Judicial Magistrate, Sankari, so that the said case might be heard along with C. C. No. 631 of 1980. THE transfer application was pending before the Chief Judicial Magistrate in Crl M. P. No. 291 of 1980. Be that as it may, it is stated by the appellant that the case in. C. C. No. 213 of 1980 stood posted to 11th September, 1980, before the Judicial Second Class: Magistrate, namakkal, and that title appellant was advised, by his Counsel that it would not be necessary for him to attend the Court on that day. However, the appellant would submit that he proceeded to the Court on 11th September, 1980, but (sic) could not reach the Court before 1-15 p. m. as the bus in which he travelled was stopped due to some altercation between the Sub-Inspector of police, Rasipuram, and the bus driver of the said bus and that when he reached the Court, he came to know that his case had been" disposed of as neither he nor. his pleader appeared before the Court and the accused were acquitted. THE appellant would state that his absence in the Court was neither wilful nor wanton and that if the order of acquittal is not set aside, grave prejudice would be caused to him.