The discretion to dismiss a complaint for non-prosecution under section 256 of the Code of Criminal Procedure should be exercised judiciously, and the presence of the complainant should be deemed necessary before such a dismissal.

ORDER ON BOARD : – This petition has been preferred under section 378(4) of the Code of Criminal Procedure (for short ‘the Code’) against order/judgment dated 10-2-2020 passed by Judicial Magistrate First Class, Korba Distt. Korba (CG) in Complaint Case No. 3546/2019, wherein the learned trial Court dismissed the complaint filed under section 138 of the Negotiable Instruments Act, 1881 for want of prosecution.

2. Learned counsel for the petitioner would submit that the petitioner was represented in every hearing by his counsel and even on 18-11-2019, he was personally appeared before the trial Court. However, on 10-2-2020, counsel for the petitioner did not inform about the date of hearing and due to some bona fide reason, the counsel also could not appear on that date. Hence, the Court below has dismissed the aforesaid case for want of prosecution. It is further submitted that non appearance of the petitioner and his counsel was bona fide and the accused has not been noticed yet. Therefore, it is prayed that considering the aforesaid facts, impugned order be set aside and the matter may be remanded back to the said Court for hearing and disposal of the case in accordance with law.

3. I have heard learned counsel for the petitioner and perused the order impugned as well as the record of the Court below with utmost circumspection.

4. In order to have proper appreciation of the issue in question, it would be profitable to notice section 256(1) of the CrPC, which provides as under : –

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

5. From the careful and close perusal of section 256 of the Code, it appears that in a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely :

1) Acquit the accused; 2) To adjourn the case’ and 3) To dispense with the attendance of the complainant and to proceed with the case.

6. Considering the provisions of section 256 of the CrPC, Hon’ble Apex Court in the matter of Associated Cement Co. Ltd. vs. Keshvanand, reported in (1998) 1 SCC 687 held as under :

“17. Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the co