( 1 ) THE present appeal is preferred against the order dated 5/03/1984 passed by the learned Metropolitan Magistrate, Court No. 5, Ahmedabad, in Criminal Case No. 1908 of 1982 acquitting the accused under Sec. 256 of the Code of Criminal Procedure as the complainant the appellant herein, was absent on that day.

( 2 ) THE appellant herein is the original complainant who lodged the complaint against the accused for defamation under See. 500 of the Indian penal Code alleging that the accused told the complainant on 13/12/1980 at about 3-30 or 4-00 p. m. , that the complainant was drunk and was behaving disorderly in public. The complainant, therefore, alleged that the accused by describing the complainant as drunkard, intended to make imputation with a view to cause harm or knowing or having reason to believe that such imputation will cause harm to the reputation of the complainant and thereby he defamed the complainant. The complainant has, therefore, filed the aforesaid complaint in the Court of the Metropolitan Magistrate, Ahmedabad.

( 3 ) THE complaint was adjourned from time to time for recording the evidence in it. On 5/03/1984, the complainant being a Government servant serving in Polytechnic, was required to go to Dholka as Supervisor and so his Advocate submitted an application for adjournment in the case: The learned magistrate rejected it and recorded the order of acquittal under Sec. 256 of the Code of Criminal Procedure. It is this order that is challenged in this appeal.

( 4 ) SECTION 256 of the Code of Criminal Procedure provides that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The proviso to Sec. 256 further contemplates that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

( 5 ) IN the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application submitted by the Advocate for the complainant. In the present case, the situation as on 5/03/1984 squarely falls within the aforesaid proviso and still the learned magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is, therefore, clear that the learned Magistrate has ignored the provision contained in proviso to Sec. 256 of the Code of Criminal procedure and therefore the order passed by him is illegal and unsustainable.

( 6 ) IN the case of State of Gujarat v. Keshavaram Shivram Devmurari and Anr. , (1977) XVIII GLR 524, this Court [ Coram : N. H. Bhatt, J. (as he then was)]