MORESHWAR MAHADEO WAKHARE Vs. NANA ALIAS ANYANESHWAR BORADE

JUDGEMENT

(1.) THE order passed by the Judicial Magistrate, First Class, Nagpur in Criminal Case No. 3432 of 1984 acquitting the accused under Section 256 of the Code of Criminal Procedure has been challenged in this appeal.

(2.) THE complainant filed a complaint before the Judicial Magistrate, First Class, Nagpur on 16/8/ 1984. Verification was recorded and subsequently on 13/9/1984 the process under Sections 341 and 351 read with Section 34 of the Indian Penal Code was issued against the accused respondents. It took a lot of time to get the accused, served. Enough to point out at this stage that in between 16/8/1984 and 28/11/1986 there were about 44 adjournments. Practically on all the dates, the complainant was present either in person or at least through his counsel. It is only on few occasions that he had to apply for exemptions through his counsel, which was granted. But such occasions were very few. From the order-sheets dated 22/4/1986 it appears the case was fixed for evidence and 12 adjournments were given by the Court. On some dates both the parties asked for an adjournment. Any how the case was lasted journey to 28-11-1986. On this date neither the complainant nor the accused appeared, nor did their counsel appear. The Court passed the following order: Complainant and accused absent though called several times. Accused acquitted under Section 256, Code of Criminal Procedure. The order-sheet dated 28/11/1986 reads as follows: T1parties by their counsels. Absent. Order passed on Ex. 1. Case is dismissed. Accused is acquitted. Case closed. The opening part of the order-sheet dated 28/11/1986 shows that the parties were present through their counsel and still the case was dismissed. Neither the endorsement on the complaint, nor in the order-sheet dated 28/11/1986 has it been specifically mentioned that the case, was called at particular time and it was recalled at particular time, though the order on the complaint shows that the case was called several times. In the result the case stood dismissed and the accused acquitted. It also appears, on the very day the complainant filed an application for restoration of the case, but it was promptly disposed of on the same day. The result was that the application for restoration was also rejected.

(3.) MR. Pendharkar, the learned advocate for the appellant, strenuously urged before me that his client was pursuing the remedy honestly throughout the period of two years. He made efforts to cooperate in the hearing of the matter. He remains present practically for all the dates. However, according to him on 28-11-1986 when the case was called, the client went to seek his advocate and by the time he returned back along with his advocate, he found to his surprise that the case was dismissed and the accused acquitted. These are the allegations made in the appeal memorandum and these allegations are on affirmation. Not only that but according to Mr. Pandharkar, he immediately moved the Court for restoration. We are not concerned here at this stage whether the Court had powers to restore it or not. That point is not germane to this controversy also. Reliance on this circumstance is to show the conduct of the complainant, who had a keen desire to pursue the matter and not to let it go in his default. Mr. Pendharkar invited my attention to Section 256 of the Code of Criminal Procedure which provides for a procedure when the complainant and the accused are absent on the date of hearing. The Magistrate has no doubt a discretion either to dismiss the case or to proceed with the case in the absence of the parties. Normally a discretion is, vested in the Magistrate and proper exercised by him would not be interfered by this Court unless on cogent grounds. What we find in the present case is that as soon as the case was called, efforts were made by the complainant to call his counsel so that the case would proceed forth, but before he could reach the Court along with his counsel, the case was dismissed. Neither the original complaint, nor the order-sheet shows the timings when the case was called. Looking to the averments made in the appeal memo, the case was called at about 11. 15 A. M. and this dismissal order came to be passed before 11-30 A. M. The court could not wait even for 15 minutes for the counsel to appear.