The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP NO.54 of 2016 (An application U/S. 378(4) of the Code of Criminal Procedure, 1973). Satikanta Jena … -versus- Petitioner Durga Prasanna Mishra … Opposite Parties For Petitioner :
Legal Reasoning
Mr. S.K. Baral, Advocate For Opposite Party : None CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:11.02.2025 G. Satapathy, J. 1. This is an application U/S.378(4) of the Code of Criminal Procedure, 1973 (in short, “CrPC”) by the petitioner seeking leave to appeal against the impugned order dated 21.08.2015 passed by the Smt. A. Choudhury, Ex-J.M.F.C., Cuttack in 1 C.C. No.1124 of 2013 acquitting the OP-accused for want of the presence of the complainant at the time of hearing by invoking the provisions of Section 256(1) of CrPC. CRLLP No. 54 of 2016 Page 1 of 6 2. Heard, Mr. Susanta Kumar Baral, learned counsel for the petitioner, but none appears for the OP. In the course of hearing, Mr. Baral harps on some simple factual points by elaborating that just when the complaint was transferred to the Court of learned J.M.F.C., Cuttack, the complainant was not informed and thereby, he could not get the date of hearing which eventually led the learned trial Court to acquit the accused by invoking the provisions of Section 256(1) of the CrPC for want of the presence of the complainant, but facts remains that the substantial right of the complainant has remained unadjudicated and, therefore, leave may kindly be accorded in favour of the petitioner to prefer this appeal. 3. Admittedly, the petitioner had instituted the complaint against the OP in the Court of learned S.D.J.M.(S), Cuttack, who vide order dated 10.04.2014 took cognizance of offence and issued process against the OP-accused, who after entering appearance in the Court filed a petition U/S.205 of CrPC to dispense with his personal attendance before CRLLP No. 54 of 2016 Page 2 of 6 that Court at subsequent stages of trial. Accordingly, the learned S.D.J.M.(S), Cuttack allowed such petition of the OP and dispensed with the personal attendance of the accused-OP by retaining an undertaking. However, on 23.12.2014, the complaint was transferred to the Court of learned J.M.F.C., Cuttack and on that day, the learned counsel for the complainant had filed a hazira which by itself shows that the representative of the complainant was present on that day and thereafter, the matter was posted to 08.04.2015 in the transferee Court, but the complainant was not present and on that day, the particulars of the offence U/S.138 of N.I. Act was read over and explained to the OP-accused and the matter was posted to 22.06.2015 for hearing, however, unfortunately on that day, the complainant was found absent, although the accused-OP remained present. However, the learned J.M.F.C., Cuttack adjourned the case to 21.08.2015 on which date the complainant again remained absent and no step was taken on his behalf. CRLLP No. 54 of 2016 Page 3 of 6 4. Indisputedly, Section 256 of the CrPC provides the contingency for non-appearance or death of the complainant on the date fixed for hearing. For clarity and better appreciation in the matter, the provisions of Section 256 of the CrPC are extracted as under:- “(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal is not attendance of necessary, the Magistrate may dispense with his attendance and proceed with the case. the complainant (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” 5. From a plain reading of Section 256(1) of the CrPC makes it obligatory on the part of the Magistrate to acquit the accused, if the complainant does not appear pursuant to summon issued on the CRLLP No. 54 of 2016 Page 4 of 6 date fixed for appearance of the accused or any other day subsequent thereto, to which the hearing may be adjourned, unless for some reason the Magistrate thinks it proper to adjourn the hearing of the case to some other day and in case, the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. In the present case, admittedly it is a complaint instituted by the petitioner against the OP for commission of offence U/S. 138 of N.I. Act and the complainant was represented by a lawyer in the Court concerned. However, the complainant did not appear not only on the date of hearing, but also subsequent date thereto and, thereby, the learned Magistrate passed the impugned order acquitting the accused, which in the circumstance appears to be correct procedure adopted by the learned Magistrate. In this case although it is argued by the learned counsel for the petitioner that CRLLP No. 54 of 2016 Page 5 of 6 the complainant could not know the date of posting of the case as the complaint was transferred from one Court to another Court, but in fact, no material has been produced nor anything brought to the knowledge of the Court to suggest that the complainant could not know about the transfer of the case, rather the order sheet dated 08.04.2015 reveals that the complainant had filed hazira on the date of transfer of the complaint and thereby, he is supposed to know the transfer of the complaint to the other Court. 6. In view of the aforesaid facts and circumstance, especially when the power U/S.256(1) of CrPC has been used by the learned J.M.F.C., Cuttack, this Court does not find any merit in the contention of the learned counsel for the petitioner to grant leave to appeal against the impugned order. 7. In the result, the present CRLLP stands
Decision
dismissed, but no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 11th day of February, 2025/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 12-Feb-2025 18:53:41 CRLLP No. 54 of 2016 Page 6 of 6