JUDGMENT AND ORDER : This appeal is directed against the order dated 16.1.2014 passed by the Addl Sessions Judge (FTC) Manipur West, Imphal in S.T. Case No. 2 of 2013 whereby and whereunder case was dismissed on the ground of its non prosecution. 2. Before adverting to the submissions advanced on behalf of the parties, the case of the complainant-appellant needs to be taken notice of. It is the case of the complainant that on 21.8.2012, at about 9.30 A.M number of persons (eighty in numbers) came to the Farm of the complainant known as Joujangtek Lambung, variously armed and destroyed standing sugarcane, cabbage, turmeric plants, ginger etc causing damage to the extent of Rs.15 lakhs. They took away solar plate with battery. At the same time, they also assaulted Angom Prem Singh, who received grievous injuries. Beside him, other villagers were also assaulted. Further case is that on 2.10.2012 the accused persons again came variously armed and destroyed remaining standing crops and took away vegetable, ginger, turmeric etc. For the said occurrence, a complaint was lodged bearing Complaint Case No.3 of 2012 under Sections 382/427/506/367/120-B/34 IPC. Upon filing of the complaint petition the complainant was examined and then the matter was posted for inquiry, during which, witnesses were also examined. Thereupon, the court, having found prima facie case being there, took cognizance of the offence punishable under Section 382/427/367/120-B of IPC against the accused person. Thereafter, case was committed to the court of Sessions Judge, Manipur West, who transferred it to the Court of Addl Sessions Judge, (FTC) Manipur West, Imphal, on 29.6.2013 upon receiving the record, it was registered as Sessions Trial Case No.2 of 2013. On the next date fixed, the complainant did appear. The complainant also appeared on subsequent dates. Thereafter the case was fixed for cross examination of witnesses though it should have been fixed for examination of witnesses before charge, in terms of provisions of Section 244 of Cr.P.C. On 19.8.2013 it was recorded that Addl. P.P is not present. However, the complainant was directed to contact Addl P.P. On 4.9.2013, complainant was allowed to assist the Addl P.P in prosecuting the case. The case was adjourned time to time on account of witnesses being not present though the complainant on number of occasions had appeared, of course, for certain dates, even the complainant was not present. However, the complainant was directed to contact Addl P.P. On 4.9.2013, complainant was allowed to assist the Addl P.P in prosecuting the case. The case was adjourned time to time on account of witnesses being not present though the complainant on number of occasions had appeared, of course, for certain dates, even the complainant was not present. Ultimately the Court on 16.1.2014 dismissed the case on account of its non prosecution. Being aggrieved with that order, an application under Section 378(4) Cr.P.C was filed for granting leave to appeal. Upon leave being granted on 15.7.2014 in M.C (Cril Appeal) No.3 of 2014 this appeal was preferred. 3. Mr. Serto T. Kom, learned counsel appearing for the appellant submits that since case has been dismissed on account of its non prosecution it amounts to acquittal of the respondents and thereby the complainant has preferred this appeal. Learned counsel further submits that though the case was pending since long, but it could not be prosecuted in absence of Addl. P.P and this fact has also been noted by learned Sessions Judge in some of his orders and reason for non attendance of the Addl. P.P was that Addl P.P namely, Smt Masana E.Panmei, upon being entrusted with this case reported on 15.1.2014. But on the very next date the case was dismissed on account of its non prosecution, which order, in the facts and circumstances certainly suffers from illegality and thereby the impugned order is fit to be set aside. As against this, learned counsel appearing for respondents submits that appeal could be preferred either against order of conviction or acquittal whereas this appeal has been preferred against the order of dismissal of the case and, therefore, it is not maintainable. Further, it was submitted that the court went on adjourning the case on number of occasions as witnesses were not turning up and thereby on account of that reason, if the Court has dismissed the case, it did not commit any illegality and thereby order impugned never warrants to be interfered with. 4. Having heard learned counsel for the parties and on perusal of record, I do find that this appeal has been preferred against the order by which the case was dismissed on account of its non prosecution, whereof it amount to acquittal of the respondents and thereby the appeal is very much maintainable. 4. Having heard learned counsel for the parties and on perusal of record, I do find that this appeal has been preferred against the order by which the case was dismissed on account of its non prosecution, whereof it amount to acquittal of the respondents and thereby the appeal is very much maintainable. Further, I do find that after the case was committed to the Court of Sessions, it was transferred to the Court of Addl Sessions Judge (FTC) Manipur West on 29.6.2013. On the next date fixed and even thereafter, the complainant did appear. It is quite surprising to note that the case was fixed for cross examination of witnesses though it should have been fixed for examination of witnesses before charge in terms of provisions as contained in Section 244 of the Cr.P.C, which reads as follows: “244. Evidence for prosecution.- (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” In view of the aforesaid provisions, the case should have been fixed for examination of witnesses before charge and the Court, in terms of the provisions as contained in sub section (2) of Section 244, was supposed to issue summon to witnesses, of course, on the prayer being made by Addl P.P. But since the Addl P.P, throughout the case was not present, which according to learned counsel appearing for the appellant was on account of reason of Addl P.P being not appointed to conduct the case. According to learned counsel for the appellant, one Addl P.P, on being entrusted with the case reported only on 15.1.2014 and on the very next date, the case was dismissed on account of non prosecution. According to learned counsel for the appellant, one Addl P.P, on being entrusted with the case reported only on 15.1.2014 and on the very next date, the case was dismissed on account of non prosecution. In such situation, there does not appear to be latches either on the part of the complainant or the Addl P.P and thereby order dismissing the case on account of its non prosecution is quite illegal and if that order is allowed to remain in force there would be miscarriage of justice and hence the said order dated 16.1.2014 is hereby quashed. Matter is remanded back to the Court concerned so that he may proceed with the trial in accordance with law. Thus, this application stands allowed.