J.S.SEKHON, J. - (1.) HARJEET Singh accused respondent has failed to appear, in person or arrange the appearance of any counsel despite due notice of the actual hearing of the appeal against acquittal. Under these circumstances, there is no alternative but to dispose of this appeal in his absence.
(2.) THE trial Court, vide impugned order dated 31-5-1088, had acquitted the accused by dismissing the complaint for offence under Section 182, Indian Penal Code, in default of the complainant (SI Vilayati Ram) non appearance in court on 31-51988. The trial Court had passed that order under Section 256, Criminal Procedure Code. The trial Court order reads as under :- "The Accused was summoned to stand trial under Section 182, IPC. The offence under Section 182, Indian Penal Code is non-cognizable and triable as summons case. It is already 12.30 p.m Several calls have been given but SI Vilayati Ram, complainant has not put in appearance. In these circumstances, the complaint is dismissed in default and the accused is acquitted as contemplated under Section 256 Cr.P.C. File be consigned." A bare glance through the said order reveals that the trial Court had not taken into consideration the proviso to Sub-Section (1) Section 256 of the Criminal Procedure Code, which reads as under : "256 (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.
(3.) THE proviso clearly provides that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, then the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the case in hand as the complaint for offence under Section 182 IPC was filed by SI Vilayati Ram and Assistant Public Prosecutor was pursuing the case on behalf of the complainant, the trial Court was not legally justified in dismissing the complaint and acquitting the accused.;