JUDGMENT
D.P. Sood, J.
1. Complainant has assailed the impugned order of dismissal of his complaint on account of his non-appearance on 15th June, 1993 passed under Section 256 of the Code of Criminal Procedure.
2. In order to appreciate the points involved for determination of this Court, it would be necessary to detail certain relevant facts.
3. Complainant had supplied goods to the accused. For consideration thereof, he had issued a cheque amounting to Rs. 8,500/- on 30th April, 1992 in the name of M/s. Vikas Rubber Industries, Mandi drawn on Himachal Gramin Bank, Nihri for full and final settlement thereof. The said cheque was bounced because of insufficiency of funds. Complainant issued a notice as envisaged under Section 138 of the Negotiable Instruments Act, 1881, which remained unreplied. Ultimately, the above said facts culminated into the filing of the present complaint.
4. The trial court after observing codal formalities with respect to inquiry as envisaged under Section 202 of the Code of Criminal Procedure directed the issuance of summons to the accused. On his appearance and after satisfying himself, the date was fixed for putting up the accusations under Section 251 of the Code of Criminal Procedure on 15th June, 1993. The complainant suffered ankle sprain on 12-6-1993. He was under treatment at District Civil Hospital,, Mandi. The medical expert had advised him ten days rest. Accordingly, he could not appear on 15-6-1993 and instead submitted an application seeking adjournment through his brother. That application was accompanied with an out-door patient slip issued by the hospital authorities. Despite submission of the application, the same was rejected and the impugned order dismissing the complaint for non-appearance of the complainant was passed.
5. Feeling aggrieved with the said order, the appellant has come up in this appeal: The main contention raised by Shri Harish Behl, Advocate, learned Counsel for the appellant is that the impugned order is contrary to the statutory requirement of Section 256 of the Code of Criminal Procedure. It is urged that the learned court below did not apply its mind to the facts and circumstances of the case necessitating the dismissal of the complaint. According to him, the trial court gravely erred in not passing the order by exercising its judicial discretion.
6. Section 256 of the Code of Criminal Procedure, 1974 (New Code) corresponds to Section 247 of Code of 1890 (old). The proviso to the Section has undergone changes in recent years inasmuch as its scope has been widened so as to empower a Magistrate to proceed with the case where the concerned Magistrate is of opinion that the personal attendance of the complainant is not necessary or where he is represented by his pleader or by the officer conducting the prosecution.
7. Keeping in view the nature of the criminal case filed by the appellant, there is no doubt that the procedure adopted in the trial of the summons case is to be adopted in the case in hand. Thus, this is a summons case instituted on complaint. Section 256 of the new Code reads as :–
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 of 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.
8. The close examination of the above said provision shows that under this section, three courses are open to the court in a case where the complainant is absent on the date of hearing. The Magistrate may (i) acquit the accused; or (ii) adjourn the case for a future date; or (iii) dispense with the attendance of the accused and proceed with the case. Which course is to be followed in a particular case, is entirely left to the discretion of the court, which discretion, however, is expected to be exercised in a judicial manner. While exercising the discretion, the courts should not forget that their existence is for the 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 object underlying the proviso to Section 256 of the Code of Criminal Procedure is that if the presence of the complainant is not necessary for the purpose of the case, the Magistrate should proceed with the case and in forming his opinion as to whether the presence of the complainant is necessary or not, he should act judicially and not arbitrarily or capriciously. It was not the extent of the legislature that the Magistrate should snap at the aforesaid provision if a complainant absents himself from the Court irrespective of the fact whether for the further progress of the case his presence is or is not necessary. The short cut approach by the Magistrate to get rid of the cases is deplorable.
9. In the instant case, the case was fixed for putting up the accusations to the accused under Section 251 of the Code of Criminal Procedure. Apart from it complainant had been regularly appearing in the court indicating his intention to prosecute it effectively. Not only this, as a precautionary measure, he had also put in the application along with out-door patient slip indicating that he had suffered ankle sprain and on account of it, he had been advised to take rest for ten day’s. This fact is clear from the contents of the out-door patient slip. In the circumstances, for the purpose of further progress of the case in hand, the attendance of the complainant in person was not essential. The nature of the case by itself indicated the necessity of exercise of judicial discretion in this behalf. The learned court below has not applied its mind to the above said facts and circumstances and gravely erred in passing the impugned order. Accordingly, the impugned order is set aside and the case is remanded to the court below for its decision in accordance with law. It would be appropriate seeing the nature of the case that the trial be expeditiously disposed of as far as possible. Complainant is directed to appear before the trial court on 18th April, 1994. Registry is directed to send the record forthwith.
