B.K. Behera, J.
1. The appellant, who was the complainant in Court below, assails the order, dated June 27,1980, passed by the learned Subdivision Judicial Magistrate, Sonapur, acquitting the respondents, who were the accused persons in a case under Section 323 read with Section 34 of the Indian Penal Code, because of non-appearance of the appellant and his witnesses, by applying Section 256(1) of the Code of Criminal Procedure. I have heard Mr. M. R. Mohanty for the appellant and Mr. G. S. Das for the respondents, Mr. Mohanty has submitted that the appellant had absented himself for reasons beyond his control and the learned Subdivision! Judicial Magistrate did not exercise his judicial discretion properly and passed an order under Section 256(1) of the Code of Criminal Procedure arbitrarily. Mr. C. S. Das, however, has submitted that as neither the appellant appeared nor any witness was produced, the learned Sub divisional Judicial Magistrate did not choose to adjourn the case and it cannot be said that he had exercised his jurisdiction improperly.
2. A perusal of the record would show that after obtaining an adjournment on June 16, 1980, on an application made by him for which the case stood posted to. June 27, 1980, for hearing, the appellant absented himself on the date fixed because of his illness for which an application for adjournment was made. It was not a case where no step had been taken on behalf of the appellant. The learned Sub divisional Judicial Magistrate was not prepared to grant an adjournment mainly because no affidavit or medical certificate in support of his illness bad been filed. According to the appellant, the witnesses had not been able to appear on that date under circumstances beyond their control. The proceeding had not been protracted by the appellant. An order, under Section 256 of the Code of Criminal Procedure which operates as a final order barring a fresh complaint should be passed after proper application of mind and sound exercise of judicial discretion (See 1982 Cr. L.J. 927: 53 (1982) C.L.T. 71- Nityananda Samal v. Naraprasad Singh). The facts and circumstances of the case would show that without justifiable ground and arbitrarily, the learned Sub divisional Judicial Magistrate rejected the application for an adjournment and recorded an order of acquittal of the respondents. It would be just and reasonable to set at naught the order of acquittal passed in the aforesaid circumstances.
3. I would allow the appeal and set aside the impugned order of acquittal recorded by the Court below. The learned Sub divisional Judicial Magistrate shall now proceed with the trial.