B.K. Behera, J.
1. In this appeal arising out of the order of acquittal recorded by the trial court under section 256 of the Code of Criminal Procedure (for short, the 'Code') in which the appellant was the complainant and the respondents were the accused persons owing to temporary absence from the court of the appellant, Mr. Mohapatra appearing on behalf of the appellant has submitted that the trial court had improperly exercised its jurisdiction by recording an order of acquittal although earlier on the date of hearing i. e, on September 22, 1979, the appellant was ready for hearing and had filed a list of his witnesses and during his temporary absence when he went out to ease himself, the case was called and the order of acquittal was recorded. In spite of service of notices, the respondents have not entered appearance.
2. Section 256 of the Code provides.
'Non-appearnce or death complainant.
(1) If the summon 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 thecomplainant 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.
3. While examinig an order of acquittal of this nature, the court is to see the context in which the impugned order has been passed and whether there has been proper exercise of the discretion vested in the Court When the complainant is absent, the court can proceed in three ways. (i) it may acquit the accused, (ii) adjourn the case or (iii) proceed to hear the case under the proviso if the complainant is represented by an Advocate or by the officer conducting the prosecution or if the personal attendance of the complainant is not considered necessary. The trial court had in this case chosen the first method. In view of the discretionary power vested in the court, a heavy responsibility rests on it while deciding as to whether to adjourn a case or to record an order of acquittal. The discretion vested in the court is to be exercised carefully and not hastily as an order of acquittal under section 256 of the Code would bar a fresh trial and therefore, such an order has immense significance. The order should show that the wide discretion vested in the court had properly been exercised.
4. The case had been posted to July 19. 1979, for hearing and on that day, the appellant was present with two witnesses. On an application made on behalf of the respondents, the case was adjourned and posted to September 22, 1979, on which day the impugned order was passed. It admits of no doubt from the record that on that day, the appellant was ready for hearing and had filed a list of witnesses. The learned Advocate for the respondents had filed an application for an adjournment of which no notice had been taken by the learned Magistrate while passing the impugned order. Sometime after the order was recorded on the ground that the appellant was absent on calls without duly noticing that he had earlier on the day filed a list of witnesses and was ready for hearing, an application was made on behalf of the appellant to recall the previous order which the learned Magistrate could not legally do and therefore, rejected that application as an order of acquittal under section 256 of the Code once reorded became final. But this would show the bonafides of the appellant especially because he was actually ready for hearing on that day and was temporarily absent for no fault of his. This learned Magistrate had not properly exercised his judicial discretion. In my view, it would be just, reasonable and proper to vacate the impugned order and direct retrial
5. In the result, I would allow the appeal, set aside the impugned order of acquittal and direct the trial court to proceed in accordance.