ORDER :

1. Mr. Samani, learned advocate for the appellant submits that the present appeals have been filed against the order passed by the learned 11th Additional Chief Judicial Magistrate, Rajkot on 12.3.2022 dismissing the complaints being Criminal Cases no.2208/17, 2207/17 and 2206/17 respectively under Section 256 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) in a Special Sitting which was held in the Lok Adalat and submits that in the Special Sitting, the matter was placed and the advocate and the complainant were found absent and therefore, the learned Trial Court Judge found that the complainant was not interested in proceeding with the matter. Mr. Samani submits that because of the internal bar dispute, the lawyer on record was debarred from practice for a period of one year and this fact was known to the Court concerned. Apart from that, Mr. Samani submits that about 4 matters were instituted by the present appellant against the accused and in Criminal Case no.1387 of 2017, the respondent was convicted, which itself suggests on record the vigilance and the interest of the complainant to pursue the matter. Mr. Samani submits that the learned Trial Court Judge was not right in observing that the complainant was remaining absent during the trial proceedings and Section 256 of the Cr.P.C. makes a provision to even grant exemption to the complainant when he is represented by a lawyer on record.

2. While countering the same, Mr. Sudhanshu Jha, learned advocate for the respondent no.2 states that the learned Trial Court Judge has considered the conduct of the complainant to dismiss the matters and thus, submits that the order under Section 256 of the Cr.P.C. would necessary follow with acquittal of the accused and hence, submits that there is no ground to interfere in the matters.

3. In Associated Cement Co. Ltd. Vs. Keshvanand, reported in (1998) 1 SCC 687, the Hon’ble Apex Court while referring to the provisions of section 256 of Cr.P.C. in context of the complaint filed under section 138 of the N.I. Act, has made observations as under :

“15. Section 256 of the Code of Criminal Procedure, 1973 (for short 'the new Code') is the corresponding provision to Section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to section 256 of the new code is reproduced here:

“Provided 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."

16. What was the purpose of including a provision like Section 247 in the old code (or section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, court has a duty to acquit the accused in invitum.

17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accused. Second is, when the magistrate considers that personal attendance of the complainant is not necessary on that day the magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the compl