IMPORTANT POINT
The question of hearing of prosecution would commence only when there is no conviction based on plea of guilty either under Section 252 or 253 Cr.P.C. and the Magistrate can insist the presence of the complainant or the prosecution only from that stage i.e. Section 254 Cr.P.C. onwards

JUDGMENT :

This appeal is against the order of acquittal under Section 256 (1) Cr.P.C..

2. The order of the learned Chief Judicial Magistrate, Thrissur is extracted below for reference:-

“Complainant absent. Accused present. Sureties present. Bail granted to accused on his executing bond for Rs.10,000/- with two solvent sureties. Complainant absent on the day when the accused was to appear. There is no representation also from the side of complainant. The name of accused and his counsel called in the open court.

As complainant is absent on a day posted for the appearance of accused, accused is acquitted under Section 256 (1) Cr.P.C.”

3. The salutary principle embodied under the various provisions of the Code was not properly understood by the learned Chief Judicial Magistrate, but passed an order of acquittal mechanically, even without going into the various aspects of Sec.256 Cr.P.C., which is extracted below for reference:

“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.

(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.”

(emphasis supplied)

4. A large amount of discretion is vested with the Magistrate under Section 256(1) Cr.P.C. to adjourn the hearing on a future date, instead of acquitting the accused under Section 256(1) Cr.P.C.. The incorporation of the proviso to Section 256(1) Cr.P.C. makes it mandatory that the Magistrate shall address the proviso before embark upon the main provision to acquit the accused. The proviso attached to Section 256(1) Cr.P.C. should be read and understood as the integral part of the main section. If the Magistrate is of the opinion that the personal attendance of the complainant is not necessary and the case can be proceeded despite his absence, he can pass an order dispensing with his attendance under the proviso and it can be exercised even without any application. Hence while exercising the jurisdiction under Section 256(1) Cr.P.C., there should not be any conflict with the right conferred under the proviso with the main provision. This would cast a duty on the court to satisfy itself with respect to the existence of any ground to dispense with the personal appearance of the complainant under the proviso, before acquitting the accused under the main provision, Section 256(1) Cr.P.C.

5. The Apex Court in Associated Cement Co. Ltd. v. Kesavanand ( 1998 Cr.L.J. 856) had noticed that the Section imposes two constraints on the Court for the exercise of power for dismissing the complaint, firstly, if the court thinks in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the accused and secondly, when the Magistrate considers that the personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter.

6. This Court had the occasion to deal with a similar situation in Johnson v. State of Kerala (2005 (1) KLT 57) and laid down the legal position in the following lines:

“The proviso to Section 256 Cr.P.C. gives a judicial discretion to the Magistrate to form an opinion about the necessity of the personal attendance of the complainant, in a given situation and then to proceed with the