The court has the discretion to acquit the accused under Section 256 of the CrPC if the complainant is absent on the date fixed for hearing. The court should exercise this discretion judicially and not capriciously, and should consider whether the personal attendance of the complainant is necessary.

JUDGEMENT

1. The appellant was the complainant and the respondent was the accused person in ICC No. 14 of 1978 (395-T/78) of the court of Mr. S.K. Das, Judicial Magistrate, Second Class, Cuttack. The case was one under S.342 of the Penal Code. After cognizance was taken of the offence, the respondent had been issued a summons and on his appearance, the case proceeded. On 28-11-1978, the date fixed for recording the evidence of the witnesses, the appellant was present with some witnesses, but at the instance of the defence, the case stood posted to 5-1-1979 for recording evidence of all the prosecution witnesses. On 5-1-1979, the date fixed for hearing, the appellant was absent on repeated calls and no steps were taken on his behalf till after 12 noon. The learned Magistrate acquitted the respondent under S.256 of Criminal P.C. At 1.15 p.m. that day, the advocate for the appellant filed the Hazira of the appellant and his witnesses along with an application praying to recall the previous order passed on that day. The application was rejected. The appellant has come to this Court in appeal after obtaining leave therefor in Cr. Misc. Case No. 13 of 1979 of this Court.

2. The learned counsel for the appellant has submitted that the appellant was diligent in the prosecution of his case and had come ready with his witnesses on 5-1-1979, but the appellant, being a Harijan and a rustic villager, went to call his advocate when the case was called on leaving his witnesses on the verandah of the court and when he came back with his advocate, it could be known that an order of acquittal had been passed. It has been submitted on his behalf that the learned Magistrate had improperly exercised his discretion while passing an order of acquittal and the order of acquittal, being wrong and illegal, ought to have been recalled. The learned counsel for the respondent has, however, submitted that the order of acquittal was neither illegal nor improper and the learned Magistrate had duly exercised his discretion in not adjourning the hearing and there was no justifiable reason to recall the order.

3. As earlier indicated, the offence for which cognizance was taken was punish, able under S.342 of the Penal Code and the case was to be governed by the summons procedure. After cognizance was taken, a summons had been issued to the respondent. Section 256 of Criminal P.C. would, therefore, be applicable to the case. This Section, corresponding to S.247 of the old Code, read as follows :-

"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-Sec. (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

The orders passed by the learned Magistrate on 5-1-1979 are extracted below :-

"Complainant absent. Accused is present. Nobody responds on behalf of the complainant despite reiterated calls. No step is also taken on behalf of the complainant. It is past 12 noon now. Hence I don't think it expedient to adjourn this case further on any ground. Hence I acquit the accused u/s. 256 of Cr. P.C.

Sd. S. K. Das,

J. M. S. C.

Later

1.15 p.m.

Advocate for the complainant files a Hazira of the complainant and four other witnesses along with a petition praying to recall the previous order. Heard, it is rejected as such a prayer has