The main legal point established in the judgment is the discretion of the Magistrate to invoke the power under Section 256 (1) Cr.P.C. and the need for judicious exercise of this discretion, considering all aspects before acquitting the accused on the grounds of the complainant's absence.

1. The complainant in S.T. Case No. 15 of 2011 on the file of the JFCM - II, Nedumangad is the appellant in Crl.Appeal No. 232 of 2012. The complainant in C.C. No. 11/2010 died. His wife was impleaded. She is the appellant in Crl. Appeal No. 448/2011.

2. The accused therein were acquitted by the learned Magistrate under Sec. 256 (1) Cr.P.C., since the complainants were absent on the day to which the case was posted. It is vehemently argued by the learned counsel for the complainants/appellants that those cases were not posted for hearing and so the acquittal of the accused under Sec. 256 (1) Cr.P.C. is illegal and unsustainable. The learned counsel has relied upon the decision of this Court in Joseph v. State of Kerala - 2010 (4) KLT 697.

3. Chapter XX of Cr.P.C. deals with trial of summons cases by Magistrates. Sec. 251 says that when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. Section 251 applies to a summons case instituted on a police report and also a case instituted otherwise than on a police report.

4. Section 252 says that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in hisdiscretion convict him soon. In other words, it is not mandatory that accepting the plea of guilt made by the accused the Magistrate should convict the accused. Section 253 is a similar provision which deals with conviction on plea of guilty in petty cases.

5. Section 254 says that if the Magistrate does not convict the accused under Section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution,and also to hear the accused and take all such evidence as he produces in his defence. Sec. 256 of Cr.P.C. reads thus:

“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 herein before 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 casse.

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

6. The main thrust of the argument advanced by the learned counsel for the complainant is that there should be a specific posting for “hearing” in any case instituted on a private complaint. The words occurring in Sec. 256 (1) “or any day subsequent thereto to which the hearing may be adjourned”, are to be understood in the context in which it is used. Section 254 (1) says that the Magistrate shall “proceed to hear the prosecution”. But the words do not end there. The section further says “ and take all such evidence as may be produced in support of the prosecution”. It does not say that there should be a separate posting of the case “for hearing”.

7. The word “hearing” appears in the last part of Sec. 256 (1) of Cr.P.C. also. The proviso to Sec. 256 (1) also makes it clear 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 c