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Judgment
[1] Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State.
[2] on due notice, the respondents No.2 to 15 & 17 have entered in the appearance through Mr. Kohinooor N. Bhattacharjee, and Ms. S. Chakraborty, learned counsel but they are not found when the matter is taken up for hearing in terms of the order dated 08.08.2019.
[3] The respondent No.16 despite due notice from this court preferred not to appear and hence, the consequence is found to ensue.
[4] The challenge in this revisional petition is against the order dated 18.03.2019 whereby the Judicial Magistrate, First Class, Kailashahar, Unakoti Judicial District has disposed the complaint case being CR 160 of 2012 where the respondents No.2 to 17 were accused of committing the offence punishable under Sections 148/149/427/379/506/447 of the IPC.
[5] From bare reading of the impugned order dated 18.03.2019, it appears that the accused persons were absent by filing a petition under Section 317 of the Cr.P.C. on the ground that the absentee accused persons were out of station, except Nimai Urang. For previous absence of Nimai Urang in the said proceeding, non-bailable warrant of arrest [NBWA] was issued but no report of execution was placed before the court. The reason was obvious. It appears that similar order was also passed on 25.01.2019 but the trial court failed to procure their appearance.
[6] Mr. Bhowmik, learned counsel appearing for the petitioner has drawn attention of this court to the order dated 24.08.2015 when the trial court had closed the evidence of the complainant and fixed the case for examination of the accused persons, the respondents No.2 to 17 herein, under Section 313 (1) (b) of the Cr.P.C. The order continued in the same fashion fixing the date for such examination but the examination could not be complete. Finally, on 18.12.2018 the trial court fixed the date on 25.01.2019 for ER, examination under Section 313 of the Cr.P.C. and order. On 25.01.2019, the complainant was present but the accused persons did not appear and sought dispensing their appearance on 25.01.2019 which was allowed by the trial court. But the report of execution was insisted. On 18.03.2019, when the impugned order was passed, the accused persons sought their exemption from appearance. That was considered but for absence of the complainant, the said proceeding was disposed of, for 'non-prosecution'. The date i.e. 18.03.2019 was fixed for ER/appearance/order. Mr. Bhowmik, learned counsel has submitted that such order has only caused the miscarriage of justice inasmuch as the complainant all along was prosecuting the case with utmost sincerity to have the justice done.
[7] Mr. Ghosh, learned Addl. P.P. appearing for the state did not oppose the prayer made by the petitioner.
[8] Having appreciated the records as produced with the revisional petition and seeing the nature of the order passed by the trial court, this court is of the view that this order warrants interference. Accordingly, the same stands interfered with and set aside. The proceeding shall resume from the stage where it was disposed of for non-prosecution.
[9] The trial court shall issue the notice to all the accused persons asking them to appear before it for purpose of examination under Section 313 (1) (b) of the Cr.P.C.
[10] The drive to dispose of a case in this fashion cannot be appreciated. All the trial courts while trying a case shall be conscious of justice cannot be allowed to fritter away on technicality.
In terms of the above, this petition stands allowed and disposed of.
A copy of this order be sent forthwith to the trial court. The complainant may as well place a copy of this order in the trial court.