P.K.SUKUMARAN v. STATE

V.K.MOHANAN, J.--------------------------------------CRL.M.C.NO. 2163 OF 2004 ---------------------------------------Dated 13th September, 2007ORDERPetitioners are accused nos.1, 2,3 and 7 in C.P No.7/2004on the file of the Judicial Magistrate of the First Class -I, Attingalwhich is instituted upon a complaint filed by the 2nd respondentagainst the petitioners as well as other 3 accused allegingcommission of offences punishable under sections 120B, 447,448, 436, 452, 456, 457, 307, 380, 398, 142, 144, 145, 146,148 and 149 of the Indian Penal Code. In this Crl.M.C., thepetitioners challenged the proceedings in the above C.P.7/2004on the ground that the above proceedings is initiated with malafide intention so as to wreak vengeance against the petitionersetc.

When the above Crl.M.C. came up for admission, this Court has granted stay of further proceedings in the above C.P.and the stay is continued. In the meanwhile, the petitionersherein filed Crl.M.Appl. No.4051 of 2006 for impleading theadditional respondent, who is the sister of the 2ndrespondent/complainant who died on 25-1-2006. On 2-8-2006, CRMC 2163/042notice was issued in the above impleading petition, which wasserved on the additional respondent and service is completed.

When the matter is taken today for consideration, thereis no representation for the additional respondent. Thoughnotice on the additional respondent was served much earlier, records show that there is no appearance and it is notdiscernible whether the additional respondent is interested eitherin defending the Crl.M.C. or prosecuting the complaint pendingbefore the court below. The proceedings in the court below is ina standstill because of the stay order granted from this court. Ifthe additional respondent is not interesting in prosecuting thecomplaint, it is open to the court below to dispose of thecomplaint in accordance with law. But for the stay order grantedfrom this Court, the court below is not in a position to furtherproceed with the complaint. Therefore, I am of the view, insteadof going into the merits and demerits of the case of thepetitioners as well as the complaint, it is better to enable thecourt below to proceed with the complaint and dispose of thecomplaint in accordance with the procedure and law.

The learned counsel appearing for the petitioners CRMC 2163/043submitted that the Ist petitioner is now at the age of 71 yearsand requested to exempt him from appearing before the courtbelow for the time being. The learned counsel appearing for thepetitioner submitted that after 21-8-2004, case in the courtbelow is being adjourned on the basis of the stay granted fromthis Court and it is not known whether the legal heirs of thecomplainant or the additional respondent herein is interested inprosecuting the complaint.

In the above circumstances, according to me, there isno meaning in kept pending the above Crl.M.C. in this Courtand the same can be disposed of with a direction to the courtbelow to proceed with the complaint in accordance with law andto dispose of the same accordingly instead of stalling theproceedings. In the above circumstances, the court below canbe directed to take up C.P.7/2004 for consideration and toproceed with the same in accordance with law and procedureand the presence of the petitioners need be insisted only ifadditional respondent or legal heirs of the 2nd respondent isinterested in prosecuting the complaint, since in spite of serviceof notice on the additional respondent, she is not turned up and CRMC 2163/044no step is taken to defend Crl.M.C.2163/2004. Accordingly, thecourt below is directed to take up C.P.No.7/2004 and to proceedwith the complaint as aforesaid within one month from the dateof receipt of copy of this order. The contentions raised in this Crl.M.C. is left open and the petitioners will be at liberty to raisethose contentions before the court below, in case the additionalrespondent or the legal heirs of the complainant choose toprosecute the complaint. With the above observation, the Crl.M.C. is disposed of. V.K.MOHANAN, JUDGE.Kvm/- CRMC 2163/045V.K.MOHANAN, J. No.... Judgment/OrderDated: