BROUGHT  TO YOU  BY   RAJEEV BHATJIWALE

ASSOCIATED CEMENT CO. LTD. V/S KESHAVANAND

  1998 S C C (CRI)475==

sections 256 and 249 -- non appearance of the complainant.  Magistrate not justified in acquitting  accused unless presence of the complainant on that date found necessary.  Discretion to acquit the  accused or proceed with the trial must be exercised judicially and fairly.  Section 256 affords some deterrence against by dilatory tactics on the part of the complainant who sets the law in  motion through his complaint.  An accused who is forced to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary.  This section therefore affords protection to an accused against such tactics of the complainant.  But that does not mean if the complainant is absent the court has a duty to acquit the accused .  The section puts two constraints on the court for exercising the powers under the section.  The first is if the court thinks that in a situation it is proper to adjourn the hearing than the magistrate shall not to acquit the accused.  The second is when the  magistrate considers that physical 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 they for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason but if the presence of the complainant on that day was quite necessary then  resorting to the step of axing down the complaint may not be proper exercise of the power envisaged  in the section.

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