IMPORTANT POINT
The central legal point established in the judgment is that the non-appearance of the complainant and lack of evidence led to the discharge of the accused, in accordance with the provisions of Section 244 & 245 of Cr.PC.

JUDGMENT :

1. Appellant/complainant has preferred this appeal being aggrieved with order dated 16.11.2016 passed by learned Chief Judicial Magistrate, Baloda Bazar – Bhatapara, (CG) in Criminal Case No.S-123/2015, whereby respondent Nos.1 & 2/accused has been discharge from the charges punishable under Sections 294, 323 & 506 (II) of the IPC.

2. Appellant has filed a criminal complaint before the CJM, Baloda Bazar – Bhatapara against the respondent Nos.1 & 2/accused alleging therein that on 23.11.2013 both the respondents abused the complainant in filthy language, threatened for his life and also assaulted him. On the basis of complaint, complaint case was registered against the respondents/accused by learned CJM. Since it was a warrant case based on complaint made by complainant, the matter was posted for recording of evidence of complainant before charge. On 16.11.2016 when the matter was called, neither the complainant nor his Counsel appeared before the Court of Magistrate and, therefore, learned CJM vide impugned order dated 16.11.2016 discharged the respondents/ accused for the offences punishable under Sections 294, 323 & 506 (II) of IPC on the ground that no material was available for framing any charge against the respondents/accused. Hence, this appeal.

3. Learned counsel for the appellant/complainant submits that on 16.11.2016 counsel for the appellant could not appear before the Court for the reason that he has gone out of station for legal aid work. Complainant was also not present before the Court. Non-appearance of Counsel for the appellant before the Court was unintentional and bona fide, therefore, impugned order by which learned CJM dismissed the case for want of prosecution, is liable to be set aside.

4. Heard learned counsel for the appellant, perused the order impugned and also gone through the entire order sheets of Court below.

5. Undisputedly, complaint case was registered against respondent Nos.1 & 2/accused by learned CJM on the basis of complaint made by the complainant/appellant herein. On 25.02.2015 complaint case was registered for trial of offences punishable under Sections 294, 323 & 506 (II) of IPC. Since, it was the case of warrant trial, learned CJM posted the matter on 17.04.2015 for appearance of respondents/accused. On 17.04.2015, respondents/ accused were appeared before the Court below and matter was posted on 13.07.2015 for production of evidence before framing charge. Subsequently, the matter was again listed on 21.03.2016, 06.06.2016, 11.08.2016 & 03.10.2016 for recording of evidence of complainant before framing charge, but complainant/appellant was not present before the Court below on any of the dates nor he produced any witness in support of his case. On the request of Counsel for the appellant/complainant, time was granted again and again by Court below for production of evidence before making charge. Finally on 16.11.2016 when the complainant or his Counsel were not appeared before the Court below, learned CJM has passed the impugned order and discharged the respondents No.1 & 2/accused from all the charges levelled against them.

6. At this juncture, it would be appropriate to reproduce the relevant provisions of Code of Criminal Procedure, i.e., Section 244 & 245 of Cr.PC, which reads as under :-

“Section 244. Evidence for prosecution – (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2). The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

Section 245. When accused shall be discharged -- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if u