MAHENDRA KUMAR BARIK v. DWIJABAR BARIK — 1988 DIGILAW 7 (ORI)

V. GOPALASWAMY, J. ( 1 ) THE complainant has preferred this appeal against the order dated 24-12-1985 passed by the S. D. J. M. , Jagatsinghpur in I. C. C. Case No. 118 of 1984, dismissing for default the complaint petition filed in the case and acquitting the accused persons (the present respondents) under Section 256 (1), Cr. P. C. ( 2 ) THE fact giving rise to the appeal, may be briefly stated, thus : The complaint case was posted to 6-12-1985 for hearing. On that day, the Presiding Officer was on casual leave and the file was put up before the Munsif. The accused persons were absent and a petition under Section 317, Cr. P. C. filed on their behalf was allowed. A hazira was filed on behalf of the complainant and the counsel for the accused persons submitted before the Munsif that it was a false hazira, when the case was posted to 19-12-1985 for consideration of the hazira. On 19-12-1985, the learned Magistrate heard the counsel in the matter of the hazira filed on 6-12-1985, and passed the impugned order on 24-12-1985 dismissing the complaint petition and acquitting the accused persons under Section 256 (1), Cr. P. C. ( 3 ) NONE appeared for the respondents at the time of hearing. ( 4 ) THE material portion of the impugned order is quoted below :". . . . . . . . . . . . THUS the hazira filed on behalf of the complainant by Mr. N. Biswal on 6-12-85 is neither a hazira of the advocate nor is a hazira by the complainant since the complainant had not signed. In the above circumstances, I am of the view that the hazira filed on behalf of the complainant on 6-12-85 ought to be rejected. Once hazira of the complainant is rejected it strikes at the root of the complaint petition so far its continuance. . . . . . . "from the above quoted portion of the impugned order, it appears that the learned Magistrate was under the impression that once the complainant is absent, the Magistrate is bound to acquit the accused under Section 256 (1), Cr. P. C. The provisions of that sub-section do not suggest that the order of acquittal should be a matter of routine and follows automatically on the absence of the complainant. P. C. The provisions of that sub-section do not suggest that the order of acquittal should be a matter of routine and follows automatically on the absence of the complainant. It is well settled that the court, while exercising his powers under Section 256 (1), Cr. P. C. must act with circumspection and apply his discretion in the matter in a judicious manner, and should not act in an arbitrary and hasty manner to dispose of the matter under the said Section merely on the absence of the complainant. In this context, the decision of this Court in the case of Lingaraj Padhan v. Guna Sahu 1973 Cut LR 534 (Cri) may be referred to. On a perusal of the impugned order, it is seen that the learned Magistrate has not exercised the discretionary power vested in him under Section 256 (1), Cr. P. C. in a judicious manner when he dismissed the complaint petition on 24-12-1985 for the absence of the complainant on 6-12-1985. ( 5 ) IN the present case what weighed with the learned Magistrate in passing the impugned order on 24-12-1985 was the absence of the complainant on 6-12-1985. On 6-12-1985, the Magistrate himself was absent and so on that day he was not in a position to pass an order of acquittal on the ground that the complainant was absent. After the case was adjourned on 6-12-85, the provisions of Section 256 (1), Cr. P. C. do not empower the Magistrate to consider on 19-12-1985 regarding the absence of the complainant on 6-12-1985. In this context, the following observations of the Division Bench of the Madhya Pradesh High Court, in Dagadu Bonder v. Babusingh Gappal Singh AIR 1962 Madh Pra 383, while considering the scope of Section 247 of the Old Code are considered material and relevant and hence quoted below :". . . . . . THE question whether the accused should be acquitted or the hearing of the case should be adjourned has to be decided on that very day of hearing on which the complainant is absent. Section 247 does not permit an adjournment of the hearing of the case for the purpose of determining whether on the previous date on which the complainant was absent he had sufficient reason for absenting himself. . . . . Section 247 does not permit an adjournment of the hearing of the case for the purpose of determining whether on the previous date on which the complainant was absent he had sufficient reason for absenting himself. . . . . "i agree with the above quoted views of the Madhya Pradesh High Court regarding the scope of Section 247 of the Old Code, which corresponds to Section 256 of the New Code. Hence, I hold that the learned Magistrate had acted illegally and beyond the scope of Section 256 (1), Cr. P. C. when he dismissed the complaint petition on 24-12-1985, on the ground that the complainant was absent on 6-12-1985 and therefore, the impugned order is liable to be set aside. ( 6 ) IN the result, the impugned order passed by the learned Magistrate on 24-12-1985 acquitting the accused under Section 256 (1), Cr. P. C. is hereby set aside and the case is restored to the file of the trial court for disposal according to law after giving notice to both the parties. Accordingly, the appeal is allowed. The lower court records be sent back to the trial court immediately. Appeal allowed .