RABINDRA BEHERA Vs. SRIDHAR SAMANTRAY

JUDGEMENT

(1.) The petitioner was the complainant and the opposite parties being the Police Officers were the accused persons in Complaint Case No. 126 of 1991 of the Court of the Judicial Magistrate, First Class (Rural), Cuttack. The case was initiated for the offences under Sections 323, 342, 294 and 504 read with Section 34, IPC. Since the accused persons were Officer-in-charge, A.S.Is. and Constable of Baranga P.S., after filing of the complaint, the Magistrate held inquiry under Section 202, Cr. P.C. and on conclusion thereof took cognizance of the offences under Sections 323, 294, 504 and 342 read with Section 34, IPC and issued summons to the accused persons. In response to the summons, the accused persons filed a petition under Section 205, Cr.P.C. to dispense with their personal attendance which was accordingly allowed. The case suffered a few adjournments. However, on 21-11-1992 the complainant being ready for hearing, filed Hazira of one witness. Since the accused persons were absent, the court having waited till 2 P.M. adjourned the case to 21-12-1992 and issued non-bailable warrant of arrest against them fixing 21-12-1992 for their appearance. Subsequent to the passing of the said order, on the accused persons filing a petition through their counsel, warrant was recalled. However, while recalling the warrant, the Magistrate directed the complainant to produce all his witnesses on the date fixed, that is 21-12-1992. On 21-12-1992 the complainant filed Hazira, but since he was absent on repeated calls and no witness was present on his behalf, the Magistrate passed the impugned order acquitting the accused persons under Section 256, Cr. P.C.

(2.) In the above factual backdrop, the question to be determined is whether the learned Magistrate was justified in putting an end to the litigation in the manner as "aforesaid by acquitting the accused persons due to absence of the complainant. It may be recalled that since the accused persons were absent on calls on 21-11-1992, although the complainant was ready for hearing and filed Hazira of one witness, the learned Magistrate issued warrant of arrest against them and adjourned the case to 21-12-1992 for their appearance. The later order passed on the same day recalling the warrant and directing the complainant to produce all his witnesses on the next date, that is, 21-12-1992 was evidently not to the knowledge of the complainant. Since he was unaware of the said order, his presence on 21-12-1992 was not necessary because that was the date for appearance of the accused persons and not for hearing. Had all these facts been taken into consideration, the learned Magistrate could not have passed the impugned order and acquitted the accused persons. As it appears, in a hot haste and in the name of speedy disposal he passed such order which in my opinion, has caused grave injustice to the complainant.

(3.) At this juncture, reference may be made to Section 256, Cr. P.C. as to what orders Court can pass in a summons case due to non-appearance of the complainant. For better appreciation, Section 256, Cr. P.C. is reproduced hereunder :