EXECUTIVE OFFICER SAMBALPUR MUNICIPALITY Vs. RAMA CHANDRA AGARWALLA

JUDGEMENT

(1.) The prosecution launched by the petitioner against the opposite party for having carried out construction of a house without permission of the municipal authorities having ended in acquittal due to dismissal of the complaint for absence of the petitioner on call, he has preferred this revision. In pursuance of the summons issued in the case the accused was present on 25-2-88 on which date the petitioner was directed to produce his witnesses on 11-4-88 for hearing of the case. On that day while the opposite party was present, the petitioner was absent on call as also his advocate and hence the following order was recorded :

(2.) Mr. S. Jena, learned counsel for the petitioner, has urged, in assailing the order, that the same was passed in disregard of the salutary principles of law which in the process has caused grave miscarriage of justice.

(3.) The order passed by the learned Magistrate was obviously u/s. 256(1) Cr. P.C. It is far too well settled in law that the powers of the court u/s. 256 are not to be exercised in a routine or mechanical manner since courts exist to advance cause of justice and not to make a casualty of it. The provisions are not to be resorted merely for the purpose of dismissal of a case since the Section vests discretion in the court to adjourn the hearing of the case to some other date if it is thought proper, and where the complainant has appeared through an advocate or is represented by an officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, to dispense with the personal attendance of the complainant and to proceed with the case. Thus, while under the provisions of the Section itself the Magistrate may adjourn the case if it appears to be the proper course to do, under the proviso the Magistrate may also proceed with the case dispensing with the attendance of the complainant if the conditions stated therein apply. It is as such necessary, before an accused is acquitted under the Section, for the Magistrate to consider whether the case is one which can be adjourned for the absence of the complainant or if the case is one to which the provisions of the proviso apply, whether he could proceed with the case in the absence of the complainant. A perusal of the order passed by the learned Magistrate does not show that those considerations had weighed with him while the order was passed. The reasons which moved him to acquit the opposite party were the absence of the complainant and of his advocate and of not taking any steps. While an order of acquittal is possible to be passed due to absence of the complainant, no such order can be passed either for the absence of his advocate or for failure to take steps. If when the case was called neither the complainant nor his advocate appeared, the Magistrate should have considered whether the case could be called some time after taking up other cases in the meanwhile or to find out whether the workload of the day could justify adjournment of the case to some other day. Such considerations were not made and instead as it appears from the order the complaint was dismissed and the opposite party was acquitted as the only necessary consequence of the absence of the petitioner. The provision of the Section does not justify such approach and hence the impugned order, is not supportable in law. Reliance was placed by Mr. Jena on 1985 Cri LJ 756 (Ker) (Santhosh v. State of Kerala) where dealing with a similar situation it was observed that there may not be anything wrong in waiting for the arrival of the complainant for a reasonable time especially when the Court's work is not thereby affected. The purpose is not to allow the cases to go by default for statistical purposes. There may be cases where the complainant who is present in court might not have heard the case being called. So also he might have left the premises for a short while for personal reasons thinking that the case may not be taken up immediately. If for the simple reason that the complainant was not present when the case was called for the first time the accused is acquitted, it may result it injustice at least in some cases. The concern voiced in the decision applies with full force to the facts of the present case.