B.K. Behera, J.
1. The appellant was the complainant and the respondent was the sole accused in a case Under Section 323 of the I. P. C. in 1 C. C. No. 212 of l980 which was first pending in the court of the learned Sub-Divisional Judicial Magistrate, Cuttack and was later transferred to the court of Mr. S. K. Das, Judicial Magistrate, Second Class, Cuttack. The first date for hearing of the case in the transferee court was September, 16, 1980. On that day following order was recorded :-
'Accused is present} Complainant is absent on call. Neither the parties not the Advocates for the complainant take due steps. This is a case Under Section 323 I. P. C. which is triable under the summons procedure. From the absence of the complainant it seems he is probably not interested to proceed with the progress of the instant trial. Hence the accused is acquitted Under Section 256 of Cr P.C. in absence of the complainant.'
2. This appeal has been directed against the order of acquittal and it has been submitted by Mr. Patnaik for the appellant that the appellant had no notice of the transfer of the case from the court of the learned Sub-Divisional Judicial Magistrate to that of the learned Judicial Magistrate, IInd Class, Cuttack and on the date fixed for hearing i.e. on September 16, 198O, the appellant had, in fact, made an application for an adjournrment in the court of the learned Sub-Divisional Judicial Magistrate and endorsement was made on it with the signature of the learned S, D. J. M. that the case had been transferred to the court of Mr. S. K. Das, Judl. Magistrate, IInd. Class, Cuttack. The transferee court, it is submitted, improperly exercised its discretion in acquitting the respondent in the manner it did. Mr. S. P. Misra, the learned counsel for the respondent, has submitted that the learned Judl. Magistrate has not exercised his discretion improperly and there is no cause for interference.
3. In the case of Nityananda Samal v. Naraprasad alias Narottam Singh 53 (1982) C. L. T. 71, this Court has observed and held :-
'Each has to be examined in its own context to determine as to whether there has been proper exercise of the discretion vested in the court. When the complainant is absent, the court can proceed in either of the three ways :-(i) it may acquit the accused or (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. In order to decide whether the persons of the complainant is necessary, the Court should act judicially and not capriciously. A duty has been cast on the Court to consider whether the personal attendance of the complainant to or is not necessary. In view of the discretionary power vested in the Court, heavy responsibility rests on it in deciding as to whether to adjourn the case or to record an order of acquittal. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal Under Section 256 of the Code of Criminal Procedure would bar a fresh trial and therefore, such an order is of immense significance. The order should show that the wide discretion vested in the Court had properly been exercised.'
4. After cognizance was taken in the instant case on June, 12' 1980, a summon was issued to the respondent fixing August, 2, 1980 for his appearance. On August 2, 1980 the following orders were passed :-
''Complainant takes no step today. Advocate Sri B. B. Naik. and B. K. Parija file Vakalatnama in favour of the accused. This day is appearance for the accused. The complainant does not appear today. It is now 3-30 P.M. At this, complainant appears. The accused is to be released for Rs. 500-with one surety for like amount.
Later:-Particulars of offence explained to the accused who pleads not guilty. Call on 16. 9. 1980 for evidence. Complainant to produce witnesses on that date.
Later :-Bail bond with affidavit filed. One Dhadi Mohanty offers bail for the accused. Case is transferred to file of Sri S. K. Das, M. S.-C. for disposal.
5. As has rightly been submitted on behalf of the appellant, the appellant was to be present in the court when the case was posted to September 16, 1980 for evidence, but had no obligation to remain in the court until the acceptance of the bail bond filed by the respondent. As is clear from the order extracted above, the case was transferred to the Court of Mr. S. K. Das after the bail bond was accepted. The appellant had no notice of this transfer. It was thus that the appellant, on the date fixed, made an application for an adjournment in the court of the learned Sub-Divisional Judicial Magistrate, waited for its disposal and after an endorsement was made by the learned Sub-Divisional Judicial Magistrate, about the transfer of the case, he moved the transferee court for an adjournment, but as by that time, the respondent had been acquitted under Section 256 of the Code of Crl. Procedure, the application was rejected. Once an order of acquittal is recorded Under Section 256 of the Code of Criminal Procedure, it cannot be reviewed. As earlier indicated, September 16, 1980 was the first data of hearing and the appellant had no notice of the transfer of the case. The learned Magistrate, while recording an order of acquittal, did not apparently notice this aspect. The appellant had not on any earlier occasion committed any act of negligence. On these facts and in these circumstances, the learned Judl. Magistrate in my view, did not exercise his judicial discretion properly and legally in recording an order of acquittal. It is necessary in the interests of justice that the order of acquittal recorded for no fault of the appellant should be set aside.
6. In the result, the appeal succeeds and the same is allowed. The impugned order is set aside. The record should now be transmitted to the learned Chief Judicial Magistrate, Cuttuck, who shall, after issuing notices to the parties for their appearance on a particular date, either try the case himself or transfer it to the court of a Judl. Magistrate at Cucttack for disposal in accordance with law.