Can a Magistrate acquit an accused under Section 256(1) of the Code of Criminal Procedure on any ground other than “non-appearance of the complainant”? This short question comes up for consideration in this appeal.

2. This is an appeal filed against the order of acquittal under Section 256(1) of the Code of Criminal Procedure (‘Code’, for short). The appellant filed a complaint alleging offence under Section 138 of the Negotiable Instruments Act against the first respondent. The complaint was taken on file and summons was issued to the accused. Thereafter, the case was posted to several dates. On 17.8.2004, warrant was issued against the accused. The case was then posted to 17.11.2004. On that day, learned Magistrate acquitted the accused under Section 256(1) of the Code.

3. The impugned order reads as follows:

“The case was called on for hearing today to which it had been adjourned. The complainant not being present either in person or by pleader, the accused is acquitted under Section 256, Criminal procedure Code.”

4. Learned Counsel for appellant submitted that the complainant was actually present in court on the crucial day and hence, the trial court seriously erred in acquitting the accused on the alleged ground of “non-appearance” of the complainant under section 256 of the code. To support this argument, certified copy of the proceedings-sheet was produced by the appellant. As per the proceedings-sheet, the following order is seen passed by the learned Magistrate:

“17.11.2004: complainant present. Accused absent. NBW issued through complainant was not executed. No reasonable explanation was given for the non-execution which shows the complainant is not diligent in prosecuting the accused. So, the accused is acquitted u/s. 256 (1) Cr.P.C.”

5. It is event from the two orders extracted in this judgment that both those orders are mutually contradictory and totally inconsistent with each other, especially on the most vital aspect viz., the presence of the complainant in court on the crucial day. While in the proceedings-sheet, it is recorded that the complainant was present in court on 17.11.2004, the order issued to the appellant shows that the complainant was absent on the same day. It is not understood why, how, and under what circumstances such a grave discrepancy crept in, in the court’s record. But the mistake cannot be justified by any explanation.

6. Any way, it is quite clear from the above facts that the trial court acquitted the accused on a day when the complainant was actually present in court. The proceedings sheet would reveal that the accused was acquitted since complainant was not diligent etc. Can a Magistrate acquit an accused on any ground other than “non-appearance of complainant, under Section 256 of the Code? I shall examine Section 256, which reads as follows:

“Section 256: Non-appearance or death of complainant-(1) 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:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or whether 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.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

7. Section 256 reveals, as indicated in the title itself, that the court can acquit the accused under the said section, only on one ground viz., “non-appearance of the complainant”. This, of course, includes non-appearance due to death of the complainant also. But, Secti