NIDHI JENA Vs. JALADHAR LENA

JUDGEMENT

(1.) The appellant was the complainant and the respondent was the sole accused in a case under section 323 of the Indian Penal Code in ICC No. 212 of 1980 which was first pending in the court of the learned Sub-divisional Judicial Magistrate, Cuttack and was later transferred to the court of Me. S.K. Das, Judicial Magistrate, Second Class, Cuttack. The first date for hearing of the case in the transferee court was September 16, 1980. On that date, the following order was recorded: Accused is present. Complainant is absent on calls. Neither the parties nor the advocate for the complainant takes due step. This is a case under section 323 Indian Penal Code which is triable under the summons procedure. From the absence of the complainant it seems he is probably not interested to proceed with the progress of the instant trial. Hence the accused is acquitted under section 256 of Criminal Procedure Code in absence of the complainant.

(2.) This appeal has been directed against, the order of acquittal and it has been submitted by Mr. Patnaik for the appellant that the appellant had no notice of the Tran fell of the case from the come of the leained Sub-divisional Judicial Magistrate to that of the learned Judicial Magistrate, Second Class, Cuttack and on the date fixed for hearing, i e. on September 16, 1980, the appellant had, in fact, made an application for an adjournment in the court of the learned Sub-divisional Judicial Magistrate and an endorsement was made on it with the signature of the learned Sub-divisional Judicial Magistrate that the case had been transferred to the court of J\M. S.K. Das, Judicial Magistrate, Second Class, Cuttack. The transferee court, it is submitted, improperly exercised its discretion in acquitting the respondent in the manner it did. Mr. S. P. Misra, the learned counsel for the respondent, has submitted that the learned Judicial Magistrate had not exercised his discretion improperly and there is no cause for interference.

(3.) In the case of Nityananda Samal v. Naraprasad alias Narottam Singh, this Court has observed and held: 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 bear 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 the Code of Criminal Procedure 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.