G.M. Khandekar, J.
1. The order of acquittal recorded by the learned Judicial Magistrate, First Class, Jalna, in Criminal Case No. 2972 of 1979 on 16-2-1981 is properly challenged by the original complainant in this appeal.
2. The present appellant by name Ambiabal had filed Criminal Case No. 2972 of 1979 against respondent Nos. 1 to 3 in respect of offence under section 500 of the Indian Penal Code in the Court of Judicial Magistrate, First Class, Jalna, on 5-11-1979. The learned Magistrate ordered issue of summons to the accused, who appeared in the Court on 10-4-1980. along with their advocate. The plea of the accused was recorded on 6-9-1980. and the case was adjourned to 26-11-1980 for hearing. On 26-11-1980, the case was adjourned to 30th December 1980 on the application of the complainant. On 30-12-1980, the case came to be adjourned to 16-2-1981, as the learned Magistrate was on leave. On 16-2-1981, the complainant was absent and the learned Magistrate passed the following order on Exhibit 1 :---
'Complainant not present when called upon. Her Advocate not present when called upon. Evidence not ready. Complainant seems to have no interest in prosecution of the case. Hence dismissed under section 256 Cri.P.C. Accused stands acquitted.'
Feeling dissatisfied with this order of acquittal, the complainant has preferred this appeal.
3. Shri S.C. Bora, learned Counsel for the appellant, urged before me that on all the dates of hearing, right from the filling of the complaint, the complainant-appellant was personally present in Court and even on the date of hearing, that is, 16-2-1981, she was present in Court along with her witnesses, but her Advocate was absent when the case was called out and the Advocate reached the Court within five minutes after the dismissal of the case. Shri Bora, therefore, made a prayer that the case should be remanded after restoration to file for further trial. He placed reliance on the decision of this Court in Bharat s/o Aba Kemukar v. Madhukar s/o Bhikji Kakde and another 1982 Mh.L.R. Bom 96, and also on the decision in C.K. Sivaraman Achari v. D.K. Agarwall and another, . Respondents Nos. 1 to 3 who are the original accused in the lower Court, are absent in this Court Shri A. M. Dabir, learned Additional Public Prosecutor, did not seriously challenge the impugned order in view of the material on record.
4. As observed above, the appellant was present in Court on all the dates of hearing. The appellant has produced affidavit of her Advocate Shri Lahoti in this Court in which the advocate has made a statement that on 16-2-1981, when the case was called, he was entering the main gate of the Court premises and he reached five minutes late in the Court hall when he came to know that the case was dismissed for default. He has also mentioned in the affidavit that when he came to the Court, the complainant and her witnesses were present in the Court premises, but they also reached the Court hall five minutes late. In view of this affidavit, it is clear that the complainant was present in the Court when the case was called out although he was not present in the Court hall. Possibly she might have gone to call her Advocate when the case was called out. The affidavit of the advocate is also clear on the point that he was late in Court by five minutes because he could not get the rickshaw in time.
5. As pointed out in the case of Bharat v. Madhukar, cited supra, the Court should not normally proceed to pass an order of acquittal in an automatic manner merely because of complainant's absence from the Court on a particular date. There should be an application of mind to the question as to whether the order of acquittal under section 256, Cri.P.C., should be passed. In the instant case, as rightly remarked by learned Counsel for the appellant, the application of mind on the part of the learned Magistrate is not evident. Under section 256 Cri.P.C. three courses are open to the Court in a case where the complainant is absent on the date of hearing. The Magistrate may (1) acquit the accused, or (2) adjourn the case for a future date, or (3) dispense with the attendance of the complainant and proceed with the case. Which course is to be followed in a particular case is entirely left to the discretion of the Court, which discretion, however is expected to be exercised in a judicial manner. While exercising the discretion, the Court, should not forget that its very existence is for dispensation of justice, no doubt within the frame-work of the statutes governing particular case. While maintaining the presumption of the innocence of the accused, the Court should not be harsh towards the complainant.
6. In the instant case, the material on record clearly goes to show that the complainant was already present in Court along with her witnesses and had the learned Magistrate waited five minutes or so, the impugned order of acquittal would not have come to be passed. However, I find that in the interest of justice a chance must be given to the complainant to claim justice from the Court and as the complainant has given sufficient reason for her absence in the Court hall when the case was called out by the learned Magistrate. I set aside the order of dismissal of the complainant and also of acquittal of the accused and restore the same to the file.
7. The result is that this criminal appeal is allowed, Criminal Case No. 2972 of 1979 is restored to the file of Judicial Magistrate, First Class, Jalna and the impugned order of acquittal passed by the learned Magistrate in favour of respondents Nos. 1 to 3 is hereby quashed. The learned Magistrate should now proceed to dispose of this case is accordance with law.