Judgment:
R.K. Dash, J.
1. The petitioner was the complainant and the opposite parties being the Police Officers were the accused persons in Complaint Case No. 126 of 1991 of the Court of the Judicial Magistrate, First Class (Rural), Cuttack. The case was initiated for the offences under Sections 323, 342, 294 and 504 read with Section 34, IPC. Since the accused persons were the Officer-in-charge, ASIs and Constable of Baranga P. S. after filing of the complaint, the Magistrate held inquiry under Section 202. Cr PC and on conclusion thereof took cognizance of the offences under Sections 323, 294, 504 and 342 read with Section 34, IPC and issued summons to the accused persons. In response to the summons, the accused persons filed a petition under Section 205, Cr PC to dispense with their personal attendance which was accordingly allowed. The case suffered a few adjournments. However, on 21-11-92 the complainant being ready for hearing filed Hazira of one witness. Since the accused persons were absent, the Court having waited till 2 P. M adjourned the case to 21-12-1992 and issued non-bailable warrant of arrest against them fixing 21-12-1992 for their appearance. Subsequent to the passing of the said order, on the accused persons filing a petition through their counsel, warrant was recalled. However, while recalling the warrant, the Magistrate directed the complainant to produce all his witnesses on the date fixed, that is, 21-12-1992. On 21-12-1992 the complainant filed Hazira, but since he was absent on repeated calls and no witness was present on his behalf, the Magistrate passed the impugned order acquitting the accused persons under Section 256, Cr PC.
2. In the above factual backdrop, the question to be determined is whether the learned Magistrate was justified in putting an end to the litigation in the manner as aforesaid by acquitting the accused persons due to absence of the complainant. It may be recalled that since the accused persons were absent on calls on 21-11-1992, although the complainant was ready for hearing and filed Hazira of one witness, the learned Magistrate issued warrant of arrest against them and adjourned the case to 21-12-1992 for their appearance. The later order passed on the same day recalling the warrant and directing the complainant to produce all his witnesses on the next date, that is, 21-12-1992 was evidently not to the knowledge of the complainant. (sic) no 21-12-1992 accused persons and not for hearing. Had all these facts been taken into consideration, the learned Magistrate could not have passed the impugned order and acquitted the accused persons. As it appears, in a hot haste and in the name of speedy disposal he passed such order which, in may opinion, has caused grave injustice to the complainant.
3. At this juncture, reference may be made to Section 256, Cr PC as to what orders Court can pass in a summons case due to non- appearance of the complainant. For better appreciation, Section 256, Cr PC is reproduced hereuhder:
'256. Non-appearance or death of complainant:
(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 what 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.'
A reading of the aforesaid provision clearly indicates that when the complainant is absent the Court can proceed in either of the three ways, namely, (i) it may acquit the accused, or (ii) adjourn the case, or (iii) proceed to hear the case if the complainant is represented by an Advocate or by the officer conducting the prosecution if the Magistrate considers the personal attendance of the complaint to be not necessary. Out of the above three modes if the Magistrate adopts the first one and acquits the accused of the charge, he can do judiciously and not capriciously since an order of acquittal under Section 256 bars fresh trial. If due to Court's non-application of mind such order has been passed, complainant's remedy is to approach the (sic) forum which, in the process consumes much time and puts finance burden on the complainant and in the long run it may not be possible the complainant to get justice. So unless the complainant is found to be grossly negligent in taking steps for hearing, the Magistrate should be very slow to exercise the discretion vested in him and acquit the accused with the aid of Section 256, Cr PC. In the case in hand, as indicated earlier, no fault can be found with the complainant for his non-appearance, the reason being that the date to which the case was adjourned was for production of the accused persons. Had the Magistrate taken pains to go through his previous order, the impugned order could not have been passed.
4. Now the next question that arises for consideration is whether the wrong committed by the Court resulting in miscarriage of justice can be corrected and the complaint case can be restored by this Court in exercise of revisional jurisdiction. Learned counsel for the opposite parties vehemently contended that as provided under Section 378, Cr PC an appeal lies to the High Court against an order of acquittal and such appeal can be presented only when special leave is granted by the High Court. By referring to Sub-section (4) of Section 401, Cr PC he would further contend that when the law provides for filing an appeal, no proceeding by way of revision can be entertained. This being the position of law, submitted the counsel, the present revision at the instance of the petitioner is not legally maintainable.
5. Controverting the aforesaid submission, the learned counsel for the petitioner urged that the revision was filed under erroneous belief that no appeal against the impugned order lies and since law permits to entertain revision in the interest of justice, the High Court in exercise of power conferred by Sub-section (5) of Section 401, Cr PC can treat the revision as an appeal and deal with the same accordingly.
6. Law is very clear on the subject that against an order of acquittal passed in a case arising out of a complaint, appeal lies to the High Court under Section 378, Cr PC and such an appeal can only be entertained after leave of the High Court is obtained. In view of this, it is to be considered whether the present revision challenging the order of acquittal can be treated, as an appeal or his Court suo motu can revise the order, when trial Court appears to have done grave injustice to the petitioner by illegally recording an order of acquittal in favour of the opposite parties.
7. I am reminded of what the apex Court has said is a different context that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so. It is one's inherent right to seek redress in the Court of law against a wrong doer. To achieve that right, certain procedures are prescribed in the Code of Criminal Procedure. If the victim adopts some wrong procedure, the Court, whose primary duty is to impart justice, should not dismiss his case and perhaps because of this reason, the Legislature has provided in Sub-section (5) of Section 401, Cr PC, that if a revision is filed on an erroneous belief that no appeal lies, the High Court in the interest of justice can treat the revision application as a petition of appeal and decide the same accordingly. Even otherwise, this Court is not denuded of its power to suo motu revise an order of inferior Court where there is glaring defect in the procedure or manifest error on a point of law resulting in flagrant miscarriage of justice.
In the case in hand, when the petitioner could not know that warrant issued for apprehension of the opposite parties had been recalled and the date had been fixed for hearing, the Trial Court should not have abruptly passed the impugned order acquitting the opposite parties without giving reasonable opportunity to the petitioner to prove his case by examining witnesses. In this view of the matter and for doing complete justice to the parties, I am inclined to revise the impugned order in exercise of suo motu revisional power.
8. In the result, the revision is allowed and the impugned order acquitting the opposite parties is set aside. Consequently, the case is restored to file. The Magistrate is directed to dispose of the case in accordance with law.