A.K.MATHUR,J. - (1.) THIS is an appeal against the order dated 24 -1 -1985 passed by the Additional Munsif and Judicial Magistrate, Sri Ganganagar, where by the learned Magistrate dismissed the complaint of the appellant on account of non -prosecution as neither the complainant nor his counsel was present on that day.
(2.) LEARNED counsel for the appellant submitted that on 24 -1 -1985 even if the complainant or the counsel was not present on that day then too also the learned Magistrate is not absolved from his liability to decide the matter. Learned counsel submitted that according to Section 256 Cr.P.C. the Magistrate is empowered to acquit the accused on account of non -appearance of the complainant. But in the present case the complaint was that the non -petitioner without obtaining the licence was dealing in sale and purchase of agricultural produce in the market. Learned counsel also submitted that on 29 -11 -1984 an application was moved on behalf of the accused persons and it was prayed that the complaint may be dismissed as it is time barred On this case was fixed for arguments on 24 -1 -1985 where as the learned Magistrate has dismissed the whole complaint. Learned counsel submitted that this kind of easy approach not been appreciated by this Court and in support of his aforesaid submission learned Counsel has relied upon Johrilal v. Ramjilal and Ors. . I have heard both the learned Counsel and I think that the view taken by the learned Magistrate appears to be casual and the learned Magistrate should have disposed of the application of the non petitioners rather than dismissing the whole complaint. It is true that the learned Magistrate has discretion to dismiss the case in the event of absence of the complainant or his counsel. But in the present case especially when the case was fixed for disposal of the application moved by the learned Counsel for the non -petitioners that the complaint is time barred, therefore, the learned Magistrate should have disposed of the application and not the whole case in the absence of the complainant. But instated of deciding the matter on merit of the application be proceed to dispose of the whole case which is not warranted in the present case.
(3.) THUS , the appeal is allowed and the order dated 24 -1 -1985 passed by the learned Magistrate is set aside and the learned Magistrate, is directed to proceed in the matter in accordance with law. The record which has been received in this case may be sent back immediately.;