((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.192 OF 1996 Indubai Namdeo Shinde Applicant versus Sarjerao Shripat Shinde & others Respondents Ms.C.Bocarro i/by V.L.Gupta for applicant. A.T.Javeri, APP for State. S.D.Thakode, Advocaqte for respondents 1 to 4. CORAM : A.S.OKA, J. DATE : 19th January 2009 JUDGEMENT : 1. Heard learned advocate for the appellant. Learned APP is present for the fifth respondent. None for the respondents 1 to 4. 2. By this appeal against acquittal, the appellant who is the original complainant has impugned the order dated 1st October 1993 passed by the learned Metropolitan Magistrate, 29th Court, Dadar, Mumbai. The order of the Court read thus :- "ORDER Today complainant is present. Her Advocate is absent. All accused are present. Their Advocate is absent. ((-2-)) Process is issued for the offences U/sec. 323,504,506(I) of I.P.Code and all these offences are triable in a summary mode of trial. Perused Roznama of this case. The complainant is persistently prayed for adjournment. It seems complainant is not interested in prosecution of accused. Complainant submitted that she is unable to give evidence in absence of her Advocate. Hence for want of prosecution complaint is dismissed and accused are acquitted." 3. The appellant filed a private complaint against first to fourth respondents alleging commission of offences punishable under sections 323, 504, 506(II) of Indian Penal Code. The learned Magistrate issued process for the offences under sections 323, 504, 506(I) read with section 34 of the Indian Penal Code. By the impugned order, the complaint has been dismissed by the learned Judge. 4. The learned counsel appearing for the appellant submitted that the appellant was present all along and even on the date on which the complaint was dismissed the appellant was personally present. She submitted that the learned Trial Judge could not have invoked section 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code") as the complainant/ appellant was very ((-3-)) much present. She submitted that the case was a summons triable case considering the offences for which the process was issued and, therefore, even section 249 of the said Code could not have been invoked. She submitted that the order of the learned Judge is completely illegal. None appears for the respondents 1 to 4. 5. I have given careful consideration to the submissions. In the impugned order the learned Judge has observed that the offences for which the process was issued were triable summarily. Assuming that the said statement is correct, in view of sub section 1 of section 262 of the said Code, the learned Judge was required to adopt the procedure specified in the Code for the trial of summons cases. The only provision under which the learned Magistrate could have dismissed the complaint and acquitted the accused is section 256. Sub section 1 of section 256 of the said Code reads thus:- "S.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 ((-4-)) 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." 6. The impugned order records that the appellant/complainant was very much present and her advocate was absent. On plain reading of sub-section 1 of section 256 of the said Code the learned Magistrate could not have exercised the power under section 256(1) of the said Code. On the date on which the impugned order was passed, the appellant who is a woman expressed inability to depose before the Court in absence of her advocate. 7. In the circumstances, the impugned order is illegal inasmuch as section 256(1) could not have invoked by the learned Judge. Hence, the impugned order deserves to be quashed and set aside and the complaint will have to be restored. 8. Hence, I pass following order :- ((-5-)) (a) The impugned order dated 1st October 1993 is quashed and set aside; (b) The complaint bearing case No.32/S/90 is restored to the file of the learned Magistrate; (c) The learned Magistrate will issue a fresh summons to the accused and will thereafter proceed with the case in accordance with the law; (d) Hearing of the complaint is expedited; (e) The record of the case shall be forthwith transferred to the Trial Court. (A.S.OKA, J.)