KHURSHIDMIYA ABDUL RASHID Vs. ABDUL SAMAD YUSUFODDIN

JUDGEMENT

(1.) This appeal by the original complainant is directed against an order of dismissal of his comn!aint recorded by the learned Chief Judicial Magistrate, Beed, under section 256 of the Code of Criminal Procedure, 1973 (hereinafter, for short, "the Code") in Criminal case No. 1713 of 1978.

(2.) The present Appellant had filed Criminal Case No. 1713 of 1978 against all the five accused, who are Respondents Nos. 1 to 5 in this appeal, alleging that on 14th September, 1978, accused No. 1 slapped him, accused No. 2 hit him with a stick, on his forehead, while the other three accused caughthold of him. On these allegations, he filed the private complaint under sections 323, 504 and f 06 (1) read with section 34 of the Indian Penal Code in the Court of the learned Chief Judicial Magistrate, Beed, on 20th December, 1978. On the same day, the statement of the complainant was recorded and process for offences mentioned above was issued against all the five accused. All the five accused appeared on 29-2-1979 and the case was adjourned to 22nd March 1979 for recording their plea. However, on 22-3-1979, the case was adjourned to 17-4-1979 for want of time. On 17-4-1979, although all the five accused were present in the Court, the complainant was absent and so his advocate filed an application (Exh. No. 12) for dispensing with the personal attendance of the complainant on the ground that he was out of station. However, this application filed by the advocate of the complainant was rejected by the learned Magistrate and he dismissed the complaint in default of the complainant under section 256 of the Code. Feeling aggrieved by this order of dismissal of his complaint, the complainant has preferred this appeal.

(3.) Shri S. A Deshmukh, learned Advocate for the Appellant, canvassed before me that the Appellant was present in the lower Court on all dates except on 17-4-1979, on which date he could not remain present as he was out of station. His grievance was that when the advocate of the Appellant was present in Court, the learned Magistrate could not dismiss the complaint in default of the complainant. The advocate of the complainant did not pass any pursis of no instructions before the learned Magistrate. It is, therefore, not understood why the learned Magistrate dismissed the complaint under section 256 of the Code, when the advocate of the complainant was present and when he had not passed any pursis of "no instructions" before the learned Magistrate. The case was fixed for recording plea of the accused persons and for that purpose, the presence of the complainant was absolutely not necessary In these circumstances, 1 feel that the learned Magistrate committed an error in dismissing the complaint of the complainant under section 256 of the Code. In fact, the order passed by the learned Magistrate is also not correct inasmuch as there is no order passed by him acquitting the accused. Of course, under section 256 of the Code, the only order which the learned Magistrate could record was that of acquittal of the accused persons. Shri K. M. Babhul- gaonkar, learned Advocate for the Respondents-accused, tried to justify the impugned order of the learned Magistrate, but I am not impressed with the argument advanced by him. I am, therefore, inclined to set aside the impugned order of the learned Magistrate, dated 17-4-1979 and restore the case to the file.