SUNITA DEVI JAIN Vs. BHABENDRA CHANDRA JAIN

JUDGEMENT

(1.) This criminal revision petition has been filed challenging the order dated 16.11.2007 passed by the learned Sub-Divisional Judicial Magistrate (Sadar) ('SDJM' for short) No. 1, Kamrup at Guwahati in C.R. Case No. 2959c/2005 whereby and whereunder the case of the complainant was dismissed for default and the accused was discharged after framing of charge. I have heard Mr. R.K. Agarwala, learned counsel appearing for the petitioner. Also Heard Ms. B. Bhuyan, learned Addl. P.P., Assam appearing for the respondent No. 2. None appeared for the respondent No. 1 despite their names shown in the cause list.

(2.) A complaint was filed by the petitioner against the opposite party No. 1 in the Court of the learned Chief Judicial Magistrate, Kamrup, Guwahati which was registered and numbered as C.R. Case No. 2959C/2005. The case was transferred to the Court of learned SDJM (S) No. 1, Kamrup, Guwahati. The learned SDJM(S) No. 1 took cognizance of the case and after examining the complainant under Section 200 Cr.P.C. finding a prima facie case against the accused/respondent No. 1 under Sections 417/418/420 IPC issued summons to the accused. During the course of the proceeding, three prosecution witnesses were examined by the learned trial Court. Before framing of charges no witnesses were examined from the defence side. The case was taken up on 12.4.2007 and the learned trial Court on the basis of the evidence and materials on record was of the view that there is reasonable ground to believe that there are materials under Sections 417/418/420 IPC against the accused and accordingly, framed charges. The charges so framed being read over and explained to the accused, he pleaded not guilty and claimed to be tried. Accordingly, fixed 5.5.2007 as next date. On 5.5.2007, complainant was present but accused was absent. The court directed to issue warrant of arrest against the accused fixing 9.7.2007 for appearance. On 9.7.2007, the accused as well as complainant were present. So, warrant of arrest was recalled, fixing 10.8.2007 as next date for cross-examination of PWs. On 10.8.2007 both the complainant and accused were present along with their counsel. All the prosecution witnesses present on that day were cross-examined. But from the defence side a petition was filed for adjournment of the case. The learned trial Court allowed the said petition imposing cost of Rs. 300/- to be paid by the accused to the three witnesses present on that day @ 100/- each, fixing next date on 22.10.2007 for examination of the PW 1 (complainant). On 22.10.2007 the case could not be taken up as the learned SDJM was on leave. The matter was re-fixed on 16.11.2007 for cross examination of PW 1. On 16.11.2007 the complainant who is an old lady informed her counsel about her inability to appear personally before the learned trial Court due to her sudden illness and accordingly instruction was given to her counsel to take necessary steps. But on that day, the counsel for the complainant could not reach the Court in time due to traffic jam as 'chhat puja' was being observed on that day. When the counsel reached Court at about 11-30 AM, by that time the case was dismissed and the accused was discharged.

(3.) The aforesaid order dated 16.11.2007 is under challenge before the Court in this revision petition. From the order dated 16.11.2007 it appears that the complaint case was dismissed only on the ground of "reluctance of the complainant to offer herself for cross-examination".