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Orissa High Court · body

2016 DIGILAW 969 (ORI)

Suresh Chandra Mohanty v. State of Orissa

2016-10-24

B.K.NAYAK

body2016
ORDER : B.K. Nayak, J. Misc. Case No. 1969 of 2016 Learned counsel for the petitioner filed certified copy of the order dated 10.12.2015 passed by the learned J.M.F.C., Bhubaneswar in ICC No. 2697 of 2013 which is taken on record. Learned counsel for the petitioner does not want to press this application. Accordingly the misc. petition is dismissed as not pressed. CRLMC No. 2611 of 2016 Heard learned for the petitioner. 2. Order dated 04.12.2015 passed by the learned J.M.F.C., Bhubaneswar in ICC Case No. 2697 of 2013 fixing the complaint case to 10.12.2015 for trial in the absence of the complainant is assailed in this CRLMC application. 3. Learned counsel for the petitioner submits that on the date fixed for hearing the complainant was absent and the J.M.F.C. instead of dismissing the complaint under Section 256, Cr.P.C., adjourned the same without giving any reason. 4. Section 256, Cr.P.C. provides as under : "256. Non-appearance or death of complainant :- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day : Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." 5. It is apparent from the order of the learned J.M.F.C., Bhubaneswar dated 04.12.2015 that in absence of the complainant he adjourned the case to 10.12.2015 for trial without acquitting the accused or dismissing the complaint, for which no reason has been given by him. But the fact remains that the Magistrate has discretion to either acquit the accused or to adjourn the hearing of the case to a future date in the absence of the complainant. But the fact remains that the Magistrate has discretion to either acquit the accused or to adjourn the hearing of the case to a future date in the absence of the complainant. Though it is always desirable that in absence of the complainant on the date of hearing the Magistrate should give some reasons for adjourning the case to a future date, but the subsequent conduct of the parties may furnish ground for not interfering with the order passed by the Magistrate for adjourning the case in absence of the complainant. In the instant case it is found that on the subsequent date hearing was taken up and the learned counsel for the accused participated in the hearing and also himself sought for adjournment for the cross-examination of the complainant. This shows that the accused has already acquiesced with the order dated 04.12.2015 passed by the J.M.F.C., Bhubaneswar adjourning the complaint case to a future date. Therefore, I am not inclined to interfere with the impugned order. Accordingly the CRLMC stands dismissed. CRLMC dismissed.