This appeal is by the complainant against the order of acquittal under S. 256(1), Cr.P.C. The case in the lower court stood posted to 21-12-1978. The complainant and his counsel were absent on that day. The court acquitted the accused. According to the complainant, when the court took up for hearing one case after another, as his counsel had not come to court, he went out of the court to bring him and before he could reach the court with his counsel his case was called and the accused were acquitted.


2. The main contention of the complainant, appellant is that when the case was called at 11 a.m. when all the cases were posted for hearing on that day he appeared before the court. When the case was called for the second time, he was not present in court as he had gone to bring his counsel. His absence was not wilful or wanton and therefore the acquittal of the accused-respondents under S. 256 Cr.P.C. is not warranted.


3. Section 256(1) Cr.P.C. reads as under -


"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." *


The learned counsel appearing for the accused-respondents contended that the section enjoins the accused should be acquitted in cases where the complainant is absent on the date of hearing. According to him, the Magistrate had no other alternative but to acquit the accused, as S. 256(1) is mandatory. In support of his contention he relied on a decision reported in Nagarambilli Tankay v. Matta Jagnnatha 1926 Mad WN 928 : 1926 (27) CrLJ 988) wherein it is held that if the complainant does not appear when the case is called, some latitude may be given before the Magistrate acquits the accused but if however he decides to act at once and acquits the accused he acts within his powers and when the order is not illegal, it could not be right for the appellate Court to interfere with the same. The Magistrate has jurisdiction to do so and the order of acquittal cannot be said to be illegal.


4. Next he drew my attention to a decision reported in Sowbagyam v. Kaliamurthi, 1970 Mad LW (Cri) 87 : 1971 CrLJ 437). This was a case under S. 323 I.P.C. and on the day of the adjourned hearing the complainant was not present either in person or by pleader. On the accused being acquitted, it was contended before the learned Judge, that the appellate court has powers to go into the sufficiency of the reason for the absence of the complainant petitioner and the order of acquittal may be reversed and further enquiry may be directed. Rejecting the contention, the learned Judge held that the order of the Magistrate cannot be said to be illegal. He acted within his powers and when the order is not illegal, it would not be right for the appellate court to interfere with the same.


5. The learned counsel appearing for the complainant appellant relied on a decision reported in Sivaraman v. Agarwall, 1978 Mad LJ (Cri) 679 : 1978 CrLJ 1376) (Ker) and contended that while exercising the discretion under S. 256(1) Cr.P.C., the court should not forget that their very existence is for dispensation of justice no doubt, within the framework of the Statutes governing particular cases. But even such statutes should be availed of with a view to advance justice and not to deny it. The complainant approaches the court with a case that he has been wronged by the accused. While maintaining the presumption of the innocence of the accused, the court should not be harsh towards the complainant. Absence of the complainant on a particular day when the case was called may be for umpteen reasons. He further contended that this is not a case where the complainant had been consistently absent or negligent in producing witnesses which might justify in drawing adverse inference from his absence and acquitting the accused. The Magistrate is not bound to acquit by the provisions of the Statute as there is nothing wrong in adjourning the case to any other day so that he may satisfy himself that the absence of the complainant was not due to lack of diligence. The absence of the complainant should not be taken as handy for short cut disposal of the case.


6. The learned counsel for the appellant next drew my attention to a decision reported in Shankar Rao v. Bhimashankar, 1971 Mad LJ (Cri) 447, where a Bench of the High Court of Mysore after reconsidering a few decisions on the point, held that the Magistrate has to exercise discretion to come to a conclusion that there are no valid grounds for adjourning the case and then only he is entitled to dismiss the complaint. The need for exercising great caution and examining the position very carefully before the Magistrate proceeds to acquit the accused in private complaints needs emphasis as the Magistrate has to exercise his discretion and conclude that there are no valid grounds for adjourning the case.


7. The next case relied on by the learned counsel for the appellant is the one reported in State of Mysore v. Hameed, 1972 Mad LJ (Cri) 474, wherein it is held in a proper case, for good reasons, the case can be adjourned even though the complainant is absent and if there are good reasons for his absence. Before proceeding to pass an order of acquittal, it is one of the legitimate duties of the court to apply its mind and see whether there are good grounds or not to act one way or the other.


Section 256(1) empowers the Magistrate to acquit the accused if on any date of hearing to which the case may be adjourned the complainant does not appear unless for some reason he thinks proper to adjourn the hearing of the case to some other day. It cannot be said that the section contemplates that the order of acquittal should be a matter of routine and followed automatically on the absence of the complainant. All the surrounding circumstances and facts have to be taken into consideration before the Magistrate dismissed the case under the section. The section invests in the court a discretion. It should not be used for merely disposing of the case. In matters like this the real test will be good faith.


8. In the instant case, on 21-12-1978, at 11 a.m. when the court called all the cases that were posted for hearing on that day one after the other, when the appellant's case was called he appeared before the court. Later, when the court took up for hearing one case after another, when the complainant appellant's case was called for the second time, he had gone out to bring his counsel. Before he could reach the court with his counsel, the Magistrate thought fit to acquit the accused. No doubt, if the complainant is absent when the case is called up, there is nothing illegal in the Magistrate dismissing the case. But the section also gives power to the Magistrate to adjourn the hearing of the case to some other day for proper reasons. What latitude the court grants is entirely discretionary. In an unreported decision of Suryamurthy, J. in Crl.R.C. No. 686 of 1978 Kumaraswamy v. Mayandi Thevar dated 29-4-1981 the learned Judge set aside the order of acquittal as the learned Magistrate acquitted the accused without applying his mind to the proviso to S. 256 Crl.P.C. and passed a mechanical order.


9. As pointed out supra, the real test is good

faith. In the instant case, this is amply satisfied by the fact that the complainant was present. When all the cases were posted for hearing to that relevant date and when his case was called, he appeared before the court. The only fault committed by him was that when the case was called a second time he was absent as he had gone out to bring his counsel. Before he came with his counsel the case was disposed of by the Magistrate under S. 256 Crl.P.C. Under these circumstances, the acquittal of the accused by the learned Magistrate is not justified. In the light of the explanation given by the complainant-appellant, the interests of justice require that he should be given an opportunity to proceed with the complaint. The criminal appeal is accordingly allowed. The Judicial Second Class Magistrate No. 3, Salem, will take the complaint to file and dispose of it according to law.