MIR SAMSUL HAQUE Vs. MIR MUKTAR

JUDGEMENT

(1.) The order of acquittal passed by the learned Sub-Divisional Judicial . Magistrate, Jajpur, in a case under S.6-A of the Dowry Prohibition Act (as amended by Orissa Act 1 of 1976) (hereinafter REFERRED TO as the Act), on account of the absence of the complainant has been challenged in this appeal.

(2.) The appellant filed a complaint petition against the respondents for having committed offences under Ss. 4 and 6-A of the Act on 21-4-1980. After enquiry under S.202 of the . Code of Criminal Procedure, (hereafter' REFERRED TO as the 'Code') the learned Judicial Magistrate took cognizance of an offence under S.6-A of the Act against the respondents and directed issuance of summons. After appearance of the respondents on 28-10-1980 and the particulars of charge under S.6-A of the Act having been explained to them on 2-1-1981, the case for the first time was posted to 26-2-1981 for hearing. On 26-2-1981 the respondents were represented but the appellant was not present in Court. Hazira of witnesses was also not filed. The learned Judicial Magistrate, therefore, recorded an order of acquittal under S.256 of the Code.

(3.) Mr. Rajen Mohapatra, the learned Advocate for the appellant, urged that in a case under the Dowry Prohibition Act on the first date of hearing itself the learned Judicial Magistrate should not have passed the extreme stringent order of acquittal. He should have been more circumspect and in exercise of his judicial discretion, he should' have adjourned the hearing which was within his jurisdiction to do. In support of his contention, he placed reliance on the cases reported in (1970) 36 Cut LT 271, Jadumani Das v. Govind Biswal and (1982) 53 Cut LT 71, Nityananda Samal v. Naraprasad. In the former case, which was under S.247 of the old Code corresponding to S.256(1) of the new Code, Acharya, J. held that the Magistrate has a wide discretionary power to examine the facts and circumstances of the case and to take all possible facts into consideration before actually passing an order of acquittal. In view of the discretionary power vested in him heavy responsibility rests on the trying Magistrate in deciding whether to adjourn the case or to record an order of acquittal in the absence of the complainant. There is nothing in the section by which the Magistrate should feel obliged to acquit the accused immediately on the absence of the complainant when the case was called. The section does not call for such an automatic action. The discretion vested in the Magistrate being a judicial one, it should be cautiously exercised on judicial consideration. The order of acquittal being appealable, the Magistrate should be able to state justifiable reasons for passing such an order and not to adjourn the hearing of the case to some other date. In the latter case, Behera, J, interpreting S.256 held that 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; (1) it may acquit the accused or (it) 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 S.256 of the 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. I am in respectful agreement with the principle laid down in the above decisions.