Section 256 of Criminal Procedure Code reads as follows:
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 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. (2) The provisions of sub-s.(1) shall, so far as may be, apply to cases where the non-appearance of the complainant is due to his death.
Thus a Magistrate can acquit an accused in a summons case, on the mere ground of non-appearance of complainant. But, such an order can be passed only on the two days (1) the day appointed for appearance of the accused (if the summons has been issued on complaint) or (ii) any day subsequent thereto, to which the hearing may be adjourned.
Can a Magistrate acquit an accused against whom warrant is issued, under S.256(1) CrPC?
Interpreting these provisions, the Kerala High Court in Joy Abraham v. Jiju Thomas observed thus: “Therefore, S.256(1) does not apply to a case in which warrant is issued. The Magistrate shall not, under S.256(1), acquit an accused whose production in Court is sought for under an arrest warrant. In short, an accused against whom warrant is issued shall not be acquitted under S.256(1) of Code. The benefit of an acquittal order under S.256(1) of the Code shall not be extended to an accused who fails to appear in Court, in obedience to the summons issued by the Court. It is not intended to be invoked in favour of such an accused.”
In Chettinad Cement Corporation Limited Vs. Rugmini Steels [2014 (2) KHC 537 :: 2014 Cri LJ 3108], it was observed thus: There may be cases where the presence of the complainant is totally unnecessary. If it is a case where warrant was issued against the accused for securing his presence and if the complainant had taken steps to issue process/warrants against the accused then on the date to which the case stood adjourned the presence of the complaint may not be necessary. There would be no justification for the Magistrate to insist on the presence of the complainant on such dates. It is not the physical presence of the complainant that is required. What is required is whether steps have been taken by or on behalf of the complainant for the due prosecution of the matter. Therefore, the insistence on the part of the Magistrate requiring presence of the complainant on all the posting dates cannot be justified.