NABAGHAN Vs. BRUNDABAN

JUDGEMENT

(1.) This is a petition under S.482 of the Code of Criminal Procedure ('Code' for short) invoking the inherent powers of the Court to set aside the order of the learned Sessions Judge, Cuttack directing restoration of I.C.C. Case No. 49 of 1985 in which the petitioners as accused persons had earlier been discharged under S.245(2) of the Code.

(2.) The parties are disputing possession of a fishing trawler which was purchased by the opposite party by securing a Bank loan and in respect of which the petitioners were the guarantors. The dispute came to a stage when the opposite party filed a complaint petition against the petitioners in the Court of the Judicial Magistrate, Kujang (I.C.C. Case No. 49 of 1985) under Ss.379 and 411 read with S.34, I.P.C. When the said case was called on for hearing on 17-10-1985, the opposite party was found absent. His witnesses were also not present in Court. The learned Judicial Magistrate, therefore, took the view that the opposite party was not interested in the prosecution case and so he discharged the petitioners under S.245(2) of the Code. Against the aforesaid order the opposite party preferred a criminal revision and by the impugned order the learned Sessions Judge, after setting aside the order of discharge, directed restoration of the case. The propriety and correctness of the aforesaid decision has been challenged before this Court.

(3.) In order to decide the case, it is necessary to look to the various orders passed by the learned Judicial Magistrate. On 20-9-1985 cognizance of the offence was taken and summons were issued for service on the petitioners fixing 13-11-1985 for appearance. Without waiting for the date fixed for appearance, petitioners Nabaghan and Padmacharan appeared in Court on 24-9-1985. On that day these two petitioners filed a petition to release the fishing trawler in their favour which had been seized earlier. The learned Judicial Magistrate posted the case to 25-9-1985 for objection and hearing of the aforesaid petition. On 25-9-1985 the opposite party filed his objection to the petition for release of the trawler. After hearing the matter, the learned Judicial Magistrate rejected the petition for release of the fishing trawler and directed that the case should be put up on the date fixed viz., 13-11-1985 for appearance of two other accused persons: Later on the day, however, the other two accused persons appeared in Court and a further direction was given by the learned Judicial Magistrate for putting up the case on the date fixed viz., 13-11-1985. It is to be noted that when the said orders were to have no notice thereof because of absence of any indication to that effect. On 3-10-1985 an advance petition being filed on behalf of the petitioners, the case was put up for hearing a petition filed by them for issuance of a search warrant with regard to the fishing trawler. It was mentioned that copy was served on the opposite party who endorsed objection. The learned Judicial Magistrate, recalled the earlier order for putting up the case on 13-11-1985, because by then all of the petitioners had already appeared in Court and posted the case to 10-10-1985 for objection and hearing of the petition for issuance of search warrant and for hearing of the complaint petition also. After reading the order passed on 3-10-1985, I entertained some doubt as to whether the opposite party had knowledge of the next date of hearing namely, 10-10-1985. But my doubt was cleared when I considered the crucial order passed by the learned Judicial Magistrate on 10-10-1985. It appears from the order of that day that the opposite party filed two petitions through his counsel. In the first petition he stated that the case was fixed for hearing on 10-10-1985. Out of fear he was unable to appear with his witnesses. Therefore; he prayed for adjournment of 15 days. In the other petition he stated that he was to file objection to the petition of the petitioners dated 3-10-1985 which was also posted for hearing on 10-10-1985. But the petitioners had threatened to assault him by engaging goondas. Therefore, it was not possible on his part to file objection and get ready for hearing of the petition. He prayed for adjournment of the case to some other date and for a further direction to the O.I.C., Paradip P. S. to give him protection. The facts stated in these two petitions positively show that the opposite party was aware of the fact that the complaint case was posted for hearing to 10-10-1985 and further he was required to file his objection and get ready for hearing of another petition filed by the petitioners on 3-10-1985. Thus on 10-10-1985 he applied for adjournment and on his prayer the case was adjourned to 17-10-1985. This being the factual position, it is difficult to accept the contention of Mrs. Padhi that the opposite party was not aware of the dates of hearing and without any notice to him the petitioners were discharged under S.245(2) of the Code. The impugned order shows that the opposite party was neither personally present in Court nor did his counsel apply for further adjournment. On the other hand, both of them were absent. The Judicial Magistrate seems to have waited till the afternoon expecting that the opposite party will appear, but as ultimately he did not, the impugned order of discharge was passed at 3.15 P.M. In view of the aforesaid facts, I find no factual reason to find fault with the order of the learned Judicial Magistrate.