UTTAM KUMAR GHOSH Vs. APU SINHA

JUDGEMENT

(1.) Heard Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. D. Sarkar, learned counsel appearing for the respondent No.1 and Mr. B. Choudhury, learned PP appearing for the respondent No.2.

(2.) By means of this petition, the petitioner has challenged the order dtd. 19/7/2018 delivered in CR(NI) 09 of 2017 by the Sub-Divisional Judicial Magistrate, Kamalpur, Unakoti Judicial District, as he then was. For purpose of reference, the entire order is extracted hereunder:

(3.) Mr. R. Datta, learned counsel appearing for the petitioner has submitted that it is true that on the appointed day i.e. 19/7/2018, the petitioner was unavailable. However, the memo of appearance was filed by the counsel but no application was filed under Sec. 256 of the Cr.P.C. praying exemption of the complainant's attendance in the proceeding. That day was fixed for examination of the witnesses to be adduced by the complainant as a last and final chance or to pass the necessary order. Since the complainant did not attend the proceeding nor did adduce the witnesses as asked by the court, the Sub-Divisional Judicial Magistrate, Kamalpur, Unakoti Judicial District, as he then was, dropped the proceeding under Sec. 249 of the Cr.P.C. There is no dispute at that bar that the statement of accusation was formed by the court and thereafter, witnesses for the complainant had been started to be recorded. In that perspective, Sec. 249 of the Cr.P.C could not have been applied. However, the wrong reference to a sec. does not make the entire order illegal or irregular. However, no person can be allowed to take the court proceeding by a ride. If someone ventures into such conduct, he or she must face the consequence thereof. As such, there is no irregularity or illegality in the order dtd. 19/7/2018 but Mr. Datta, learned counsel has submitted that the complainant was sufficiently prevented from attending the proceeding because of some unavoidable circumstances, but unfortunately the counsel he has appointed did not place those circumstances before the court.