DWIJENDRANATH DUTTA Vs. SIRIA JENA AND 4 ORS.

JUDGEMENT

(1.) THE accused persons, the Respondents in this appeal, have been acquitted under Section 247, Code of Criminal Procedure on the absence of the complaint from Court on 2 -2 -1973, and hence this appeal by the complainant.

(2.) ON 2 -2 -1973 one I of the accused persons was absent. A time petition to condone his absence for the day was filed on that date and that petition was allowed by the Magistrate. On that day on behalf of the complainant, a petition was filed to allow him time to examine two persons who, as stated in the said petition, were ill on 2 -2 -1973. The names of those witnesses, who were intended to be examined by the complainant, undisputedly appear in the complaint petition. When the case was called for hearing, the complainant and his lawyer were not present in Court. The Court, without ascribing any convincing and cogent reason for not granting the above mentioned petition of the complainant, by one stroke of pen rejected the complainant's aforesaid petition, and on the ground that the complainant was absent on call on that date dismissed the case and acquitted the accused persons under Section 247, Criminal Procedure Code.

(3.) IN this case, admittedly a petition had been filed on behalf of the complainant to grant him some time to enable him to produce two of his witnesses to be examined in this case. The Magistrate has not disposed of that petition on merits. The witnesses who were intended to re -examined by the complainant by the said petition figure as witnesses in the complaint petition. So the Court should have applied its mind and should have passed a judicious order on the merits of that petition. The complainant's lawyer of course was absent at the time when the said case was taken up for hearing. It was certainly undesirable and improper for the advocate to remain absent from the Court at the time when the case was taken up for orders. But merely on the absence of the lawyer the Court should not have proceeded to pass an order of acquittal in a casual and automatic manner without disposing of the said petition on merit.