NARENDRANALH MOHANTY Vs. ANIRUDHANATH MOHANTY

JUDGEMENT

(1.) THIS is a petition, in revision, to set aside an order of acquittal passed under Section 247 Code of Criminal Procedure by a Third Class Magistrate of Cuttack. The Petitioner was the complainant in a case under Section 323 I.P.C. transferred to the file of that Magistrate. The prosecution evidence was closed on 25 -10.1957 and the accused persons were also examined Under Section 342 Code of Criminal Procedure on 10 -12 -1957. The case was adjourned to 11 -1 -1958 on which date the complainant was absent and filed a petition stating that the complainant was unavoidably detained in connection with the Sradha ceremony of his mother. The magistrate rightly adjourned the case to 25 -1 -1958, but again after giving notice to the parties he changed the date to 3 -2 -1958. On that date the complainant was absent when called and then the Magistrate acquitted the accused under Section 247 Code of Criminal Procedure As soon as the order of acquittal was passed the complainant appeared and filed a petition stating that "he was actually present in court premises but that he did not hear the sound of the peon calling out the case. The Magistrate observed that he had already passed the order of acquittal that he could do nothing more in the matter.

(2.) APPARENTLY , the learned Magistrate has overlooked the proviso to Section 247 Code of Criminal Procedure inserted by the recent amendment of 1955. Formerly if in a summons case the complainant is absent on the date fixed for hearing the Magistrate was bound to acquit the accused persons but by virtue of the change in the law made by the amending Act XXVI of 1955 the following proviso Was added: