The court emphasized the need for the complainant to be given an opportunity to proceed with the complaint, highlighting the discretion of the court in such cases.

1. The appeal is by a complainant against an order of acquittal under S.256 Cr. P. C. The case stood posted on 21-10-1976. The complainant and his counsel were absent on that day. The accused who was present requested for an adjournment. However, the court acquitted the accused. The complainant would say that his absence was due to a mistaken impression that the case stood posted to 27-10-76. According to him, when the Bench clerk announced the date of hearing on the previous hearing date, both himself and his counsel understood it as 27-10-76. It was only when he went to court on 27-10-1976 that he came to know that the case was taken up on 21-10-76 and the accused had already been acquitted on that day.

2. The main contention of the appellant is that the case stood posted for the day for return of summons and the court should have adjourned it to another date in order to enable the complainant to produce witnesses and should not have acquitted the accused.

3. S.256 (1) of the Criminal Procedure Code (1974) reads: '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 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.'

4. The contention put forward on behalf of the accused-respondent is that the section enjoins that the accused should be acquitted in cases where the complainant is absent on the date of hearing. Stress was made on the word 'shall' in S.256 (1) and it was argued that in the absence of the complainant and his counsel, the Magistrate had no other alternative but to acquit the accused.

5. S.256 of the Code of Criminal Procedure. 1974 (New Code) corresponds to S.247 of the Code of 1898 (Old Code). The proviso to the section has undergone changes in recent years. The Law Commission had occasion to consider the scope of the section and the proviso when it recommended changes. The report of the Commission reads:

'S. 247 seemingly requires the presence of the complainant in a complaint case at every hearing, and prior to the amendment of the Code in 1.955, the rule was that if the complainant absented himself, the accused must be acquitted unless the Magistrate thought it proper to adjourn the hearing. It was evidently felt that this rule was too harsh, and a proviso was added in 1955 saying that 'where the Magistrate is of opinion that the personal attendance of the complainant is not necessary' he may dispense with such attendance. The rigour of the original rule has thus gone, and the whole thing is left to the discretion of the Court which, we assume, is being properly exercised. It has been suggested that if the complainant is a public servant or the complainant is properly represented by a pleader, the case should not be dismissed because of his absence. We have, however, no reason to think that in such situations the court will not be persuaded to dispense with the presence of the complainant, so that the provision of law as it stands and as it is intended to be worked is in our view adequate.

The only change which we suggest in the section is to extend the scope of the proviso so as to empower the Magistrate to proceed with the case where the complainant is represented by his pleader or by the officer conducting the prosecution.'

6. S.247 after its amendment in 1955 was the subject-matter of the decision in Sanitary Inspector, Kunnamkulam v. lyyavu (1959 KLT.1277). On the day to which the case