Can a Magistrate acquit the accused under Section 256(1) of the Code of Criminal Procedure (the code, for short), before issuing process/summons to the accused? This short question arises in this appeal filed by the complainant, challenging the order of acquittal passed under Section 256(1) of the Code.

2. The appellant filed a complaint before a Magistrate’s Court, alleging offence under Section 138 of the Negotiable Instruments Act. The first respondent is the accused in that case. The case was taken on file by learned Magistrate and summons was issued to the accused by registered post. The case was then posted to another day. But, on that day, complainant was absent. His counsel was also absent. There was no representation for the complainant. Hence the accused was acquitted under Section 256(1) of the Code of Criminal Procedure. Is such an order sustainable?

3. Learned counsel appearing for complainant-appellant submitted that by an inadvertent mistake, a wrong date of posting was noted by both complainant and his counsel and hence, both of them were absent on the crucial day. Their absence was not willful. He also submitted that the presence of the complainant was not at all required on that day, since the case was posted only for appearance of accused. But, even before appearance of the accused, the accused was acquitted. This is illegal, it is argued.

4. I shall first go through section 256 of the code and find out whether on the facts of this case and in the light of the provision contained in Section 256 of the code, the impugned order of acquittal is legal or not. Section 256 reads as follows:

“S.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 the 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 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.

(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.”

A reading of Section 256(1) of the code shows that if summons has been issued on complaint, and the complainant does not appear on the day appointed for appearance of the accused, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. It is clear from section 256 of the code that non-appearance of complainant would become fatal even on the date appointed for first appearance of the accused. Therefore, the argument that an accused shall not, under any circumstance, be acquitted on the day posted for his appearance, since presence of the complainant on such day is not at all required etc., is not acceptable.

5. The expression used in Section 256(1) is “shall” acquit and not “may”. This apparently indicates the mandatory nature of the provision, going by the expression used in the section. It has also to be borne in mind that the consequence of a mere non-appearance of complainant and his counsel would be very fatal resulting in the acquittal of the accused, that too, at a very early stage of the proceedings itself. In my view, the above facts must alertedly forewarn the court and put it on guard to make sure that all the requirements under the said section are thoroughly satisfied, before acquitting an accused under section 256(1).

6. In this back ground, I shall consider whether the acquittal of the accused on the relevant day is legally sustainable in the light of section 25