NITYANANDA SAMAL Vs. NARAPRASAD

JUDGEMENT

(1.) THE appellant was the complainant and the respondent was the accused person in ICC No. 14 of 1978 (395 -T/78) of the court of Mr. S.K. Das, Judicial Magistrate, Second Class, Cuttack. The case was one under Section 342 of the Penal Code. After cognizance was taken of the offence, the respondent had been issued a summons and on his appearance, the case proceeded. On 28.11.1978, the date fixed for recording the evidence of the witnesses, the appellant was present with some witnesses, but at the instance of the defence, the case stood posted to 5.1.1979 for recording evidence of all the prosecution witnesses. On 5.1.1979, the date fixed for hearing, the appellant was absent on repeated calls and no steps were taken on his behalf till after 12 noon. The learned Magistrate acquitted the respondent under Section 256 of Criminal Procedure Code At 1.15 p.m. that day, the advocate for the appellant filed the Hazira of the appellant and his witnesses along with an application praying to recall the previous order passed on that day. The application was rejected. The appellant has come to this Court in appeal after obtaining leave therefor in Cr. Misc. Case No. 13 of 1979 of this Court.

(2.) THE learned counsel for the appellant has submitted that the appellant was diligent in the prosecution of his case and had come ready with his witnesses on 5.1.1979, but the appellant, being a Harijan and a rustic villager, went to call his advocate when the case was called on leaving his witnesses on the verandah of the court and when he came back with his advocate, it could be known that an order of acquittal had been passed. It has been submitted on his behalf that the learned Magistrate had improperly exercised his discretion while passing an order of acquittal and the order of acquittal, being wrong and illegal, ought to have been recalled. The learned counsel for the respondent has, however, submitted that the order of acquittal was neither illegal nor improper and the learned Magistrate had duly exercised his discretion in not adjourning the hearing and there was no justifiable reason to recall the order.

(3.) EACH case has to be examined in its own context to determine as to whether there has been proper exercise of the discretion vested in the court. When the complainant is absent, the court can proceed in either of the three ways : (i) it may acquit the accused or (ii) adjourn the case or (iii) proceed to hear the case under the proviso if the complainant is represented by an advocate or by the officer conducting the prosecution or if the personal attendance of the complainant is not considered necessary. In order to decide whether the presence of the complainant is necessary, the court should act judicially and not capriciously. A duty has been cast on the court to consider whether the personal attendance of the complainant is or is not necessary. In view of the discretionary power vested in the court, heavy responsibility rests on it in deciding as to whether to adjourn the case or to record an order of acquittal. The discretion vested in the court should be exercised carefully and not hastily. An order of acquittal under Section 256 of Criminal Procedure Code would bar a fresh trial and therefore, such an order is of immense significance. The order should show that the wide discretion vested in the court had properly been exercised.