Orissa High Court
Satikanta Jena vs Durga Prasanna Mishra ... Opposite ... on 11 February, 2025
Author: G. Satapathy
Bench: G. Satapathy
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 ... Petitioner
-versus-
Durga Prasanna Mishra ... Opposite Parties
For Petitioner : 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.
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
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.
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
attendance of the complainant is not
necessary, the Magistrate may dispense with
his attendance and proceed with the case.
(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
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
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
dismissed, but no order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 11th day of February, 2025/S.Sasmal
Location: High Court of Orissa
