CHAPTER XX

TRIAL OF SUMMONS-CASES BY
MAGISTRATES
251. Substance of accusation to be stated.—When in a
s u m m o n s - c a s e the a c c u s e d appears or is b r o u g h t before the
Magistrate, the p a r t i c u l a r s of the offence of w h i c h he is a c c u s e d
shall be stated to him, a n d he shall be a s k e d whether he pleads
guilty or h a s a n y defence to make, b u t it shall not be necessary
to frame a f o r m a l charge.
Synopsis

1. Legislative history, 2788

2. Object, 2788
3. Summons case, 2789
4. Procedure when accused charged with both summons case and warrant case
offences, 2789
5. Summons cases not to be committed to Sessions, 2790
6. Trial when begins, 2790
7. Substance of accusation to be stated when accused appears before court, 2790
(i) Clear and detailed particulars to be stated to accused, 2791
(a) Marginal note of sections not sufficient, 2791
(b) Offence having many ingredients, 2792
(c) Conspiracy, 2792
fd) Transfer of case, 2792
(ii) Detailed record not necessary, 2793
(iii) Amendment of particulars of the offence/charge, 2793
8. Trial for offence under Special Act—Minor accused—Procedure, 2793
9. Accused to be asked, if he has any cause to show, 2793
10. In absence of accused pleader may plead guilty, 2794
11. Company charged with offence—Need for compliance with provisions, 2794
12. Omission to comply with section, 2795
13. Formal charge not necessary, 2796

1. Legislative history.—Section 251 corresponds to s. 242 of the

old Code with the changes that (1) after the word "when", the words
"in a summons case" have been inserted and after the words "shall be
asked", the words "whether he pleads guilty or has any defence to
make" have been inserted.
This Chapter deals with the trials of summon cases only and a
warrant case cannot be tried under the Chapter nor a summons case
can be tried under Chapter XIX of the Code.'
2. Object.—The object of s. 251, is to determine whether the
accused pleads guilty or not and this can be performed by his counsel
when his personal attendance has been dispensed with under s. 205.
The word "accused" in s. 251/252 is not limited to the person of the
accused.2

1. 7 Mad 454.
2. S. Nihal Singh v. Aijan Das, 1985 Cr LJ 467 (Del) : (1984) 2 Crimes 625 : (1985) 27
DLT 147.

(2788)
S. 251] Substance of accusation to be stated 2789
3. Summons case.—'The criterion in determining whether a case
is summons-case or a warrant case is the punishment provided for an
offence.2 An accused cannot maintain application for discharge under
this section before recording of evidence of prosecution witnesses.3
It is the complaint and the notices issued to the accused and also
the commencement of a case by a Magistrate under certain sections of
the I.P.C., and not the particular section under which the conviction
takes place, which decide the question whether the case is triable as a
warrant case or a summons case.4
If the Magistrate tries a summons case as a warrant case, it is an
irregularity curable under s. 465, when no prejudice to the accused is
established.5 Where a summons case is tried as a warrant case, the
Magistrate should follow the procedure of a warrant case to the end. If
he omits to comply with the provisions of s. 246, (in cases instituted
on private complaint), the omissions amount to illegality which is not
cured by s. 465 and the proper order to pass in revision is one of
acquittal and not of retrial.
4. Procedure when accused charged with both summons case
and warrant case offences.—No provision has been made in Cr. P.C.
as to the procedure to be followed when a person is charged both with
a summons case offence and a warrant case offence. But as a warrant
case offence cannot be tried as a summons case offence, procedure
prescribed for the trial of a warrant case offence is to be followed in
such a case.7 When there are more than one accused, statement of
accused should be recorded separately and not jointly. In case of
breach of this provision and that of 252 Cr. P.C., conviction will be
improper.8 Where two charges arising out of the same transaction are
brought against a person, one of which is a summons case and the
other a warrant case, the case should be tried as a warrant case.9
Where the allegations in a complaint disclose a warrant case against
some accused and a summons case against others, the offences being
committed during the course of the same transaction, the proper
procedure to be adopted is that laid down for a warrant case. In a
summons case the court should decide the objection of the accused
about maintainability first."
When a case is being tried as a warrant case and a charge is
drawn of an offence which is triable as a warrant case, if it is intended
to proceed against the accused also for an offence which is triable
only as a summons case, that offence should form part of the charge.1

1. For definition see s. 2(ui).

2. 1956 Andh WR 642 : AIR 1957 AP 977.
3. Kumar v. Perumal, 1997 Cr LJ 907 (Mad).
4. 19 ALJ 6 (10).
5. AIR 1961 SC 986 : 1961 1 SCJ 573 : (1961) (2) Cr LJ 39 (SC).
6. 1954 C r L J 12 : AIR 1953 HP 121.
7. ILR (1948) All 7 : AIR 1948 All 135 ; 1960 Ker LT 99 ; ILR (1962) Cut 475 : 27 Cut LT
224 : (1964) 1 Cr LJ 107 (Manipur).
8. Anand Vithba v. State of Maharashtra, 1999 Cr LJ 2857 (Bom).
9. 11 Cal 91 ; 146 IC 173 : AIR 1933 Rang 343.
10. ILR (1949) Mad 58 : (1948) 1 MLJ 301 : AIR 1949 Mad 76.
11. Samuel v. V.K. Krishna Rao, 1998 Cr LJ 231.
2790 Ch. XX— Trial of summons-cases by Magistrates [S. 251

charge.1 In this case accused was summoned for offences under ss.
143 and 379, I.P.C., but a charge was drawn up only for an offence
under s. 379, though he was eventually convicted only for an offence
under s. 143, I.P.C. without any charge having been framed under
this later section, it was held that conviction under s. 143, I.P.C. was
bad, as the accused must have been misled in his defence. But in
another such case the conviction was upheld.2
The trial of the case against the accused commenced as a warrant
case as one of the two offences complained of was triable as a warrant
case. After the examination of the prosecution witnesses was over and
after the examination of the accused, the trial in respect of the offence
triable as a warrant case was dropped and the Magistrate proceeded
further without framing a charge. No defence witness was led by the
accused and the Magistrate convicted them for the offence triable as a
summons case. It was held that the trial of the case having
commenced as a warrant case, it was necessary that it must be
concluded as a warrant case and the sudden change of procedure in
the midst of the triad was obviously illegal. The accused were also
prejudiced in asmuch as they were deprived of the right of even
examining the prosecution witnesses after the charge.3
5. Summon* cases not to be committed to Sessions.—The Cr.
P.C. has prescribed a procedure for the trial of summons cases, and
Chapter XX which prescribes that procedure, contains no provision
either for framing or writing a charge against the accused person or
for committing him to Court of Session. The law, therefore, requires
that the cases of this kind be tried by a Magistrate and not be
committed to a Court of Session.4
6. Trial when begins.—Under this section, the trial of a summons
case begins when the accused appears or is brought before the
Magistrate and not when he is asked whether he pleads guilty or has
any defence to make.5 The accused is not entitled to know what
detailed evidence prosecution may lead, before he appears in court.6
7. Substance of accusation to be stated when accused appears
before court.—In a summons case, the Magistrate must follow the
provisions of s. 251, which are imperative. The procedure prescribed
therein should be strictly followed as soon as the accused person
appears or is brought before the Magistrate, the substance of the
charge against him must be stated to him and he must be asked to
plead.7 When the accused appears or is brought before the Magistrate,
the Magistrate must not only state the charge to the accused but also
explain it fully to him. The record must show that this has been done

1. 29 Cal 481 (482) : 6 CWN 599.

2. 31 Cr LJ 59 (2), following 24 Cr LJ 372.
3. AIR 1957 Manipur 36 (2) : 1957 Cr LJ 1427 (2).
4. 3 ALJ 14 (16).
5. (1947) 1 MLJ 172 : AIR 1447 Mad 306 (1).
6. 52 All 448 : AIR 1930 All 274.
7. AIR 1961 Tripura 41.
S. 251] Substance of accusation to be stated 2791
and must give the answer as nearly as possible in the words used.1
The accused should have a clear statement made to him : (1) that he
is about to be put on his trial and (2) as to the offence or facts
constituting the offence with the commission of which he is accused.2
Section 251 only dispenses with a formal charge in a summons case,
but it does not dispense with the statement of the particulars of the
offence for which the accused is to be dealt with.3
The purpose of questioning the accused under s. 251 is to
appraise him of the charge against him. If, therefore, the accused
knows the complaint against him word by word and replies to it
paragraph by paragraph and his plea in effect is a plea of not guilty,
there is substantial compliance with s. 251.4
(i) Clear and detailed particulars to be stated to accused.—
The particulars of the offence must be stated in such detail as to give
the accused full information regarding the case which he has to meet.5
The time and the place of the alleged act or omission and such other
matters as are reasonably sufficient to give the accused notice of the
matter with which he is charged must be stated. It is not sufficient
merely to state the section of the law, under which the accused is
prosecuted.6 The provisions of s. 251 are mandatory. Where, it has
not been specifically put to the petitioners that they are in possession
of fermented Mahuawash for the purpose of manufacturing liquor
6ther than tari, the petitioners, apart from being rustic, were also not
represented by lawyers and, therefore, they were not made known
what charge they were to meet.7
When the accused appears or is brought before the Magistrate, it
is the duty of the Magistrate to explain the substance of the
accusation to the accused so as to make him understand fully the
implication of the same and then proceed to record what the accused
states before him. The law requires that the plea must come from the
mouth of the accused. Where the accused once pleaded not guilty and
later pleads guilty by an application, the conviction on the basis of the
plea in the application is illegal, as in trial of summons cases the plea
of the accused cannot be recorded on two occasions. The plea of guilty
should not be in, mechanical manner.8 The Magistrate should record
the substance of the accusation read out to the accused and the
accused be made to understand the implication of pleading guilty.9
(a) Marginal note of sections not sufficient.—Section 251, requires
that the particulars of the offences, of which a person is accused,
shall be stated to him, and a general reference to the inclusive terms
of a marginal note appended to a section which deals with several

1. LBR (1872-1892) 594.

2. 4 Cal 603 : 3 CLR 87.
3. 1941 PWN 677 : AIR 1942 Pat 130.
4. AIR 1957 Raj 296 : 1957 Cr LJ 994.
5. ILR (1954) Mys 229 : AIR 1954 Mys 164,
6. 1961 (1) Cr LJ 652 (Guj) ; AIR 1962 Ker 78.
7. Purusottam Sabra v. State, 1992 Cr LJ 1417 (Ori).
8. State of Mysore v. Bheemal, 1971 C r L J 1261 (Mys).
9. S. Chinnaswamy v. State, 1973 Cr LJ 258 (Mad).
2792 Ch. XX— Trial of summons-cases by Magistrates [S. 251

offences made up of distinct facts, does not amount to a compliance

with this requirement.1 Only the section under which the accused is
being prosecuted should not be read, it is necessary that the
particulars of the offence be stated to him.2
(b) Offence having many ingredients.—Under s. 251, the essential
particulars of the offence must be put to the accused and where the
two vital essential particulars were not put to the accused tried for an
offence under s. 273, I.P.C. and he pleaded guilty, it was held that the
omission was an irregularity curable but if the accused was not
represented by counsel, the omission was not curable and the
conviction could not be sustained.3 If the offence has' many
ingredients, it is advisable to state the particulars clearly so that the
accused may understand all the ingredients of the offence. If the
particulars to the accused suffers from omission of material
particulars, the plea will not be a plea of guilty. The charge should be
explained to the accused in such a manner that he becomes aware of
the charge which he has to meet. Whatever may be the allegations in
the first information report or in the complaint, the law makes it a
duty of the Magistrate that the particulars of the offence of which he
has been charged shall be stated to him. Therefore, merely recording
in the order-sheet that substance of accusation has been explained
cannot be regarded as proper and necessary compliance with the
mandatory provisions of s. 251 and such an order cannot be
sustained. In case of an offence under s. 7 of the Essential
Commodities Act, there must be indication to the accused as to
exactly what control orders or conditions of licence have been violated
so as to give rise to any offence under s. 7 of the E. C. Act ,4 When the
accused has appeared or has been brought before the court, the
Magistrate has to state the particulars of the offence and ask whether
he pleads guilty or not and only for this, it is not proper to go on
giving dates.5

(c) Conspiracy.—If there is no other evidence, the charge for

conspiracy cannot be framed against an accused on the statement of
the co-accused, as the statement of the co-accused is not an
evidence.6
(d) Transfer of case.—Where a Magistrate thinks that the accused
has not full notice of the offence, under s. 251, that he had to answer
in that very Magistrate's court, the proper procedure for the
Magistrate is fully to explain the offence and tiy the accused again
after the accused has full notice of the offence he has to meet. That
omission by the Magistrate himself gives the Magistrate no power to
acquit the accused person without entering into the merits of the case

1. 28 Bom 129 (142). See also AIR 1923 Rang 132.

2. Vithol Parovo Desai v. Premavati Probina Desai, 1969 Cr LJ 738 (Goa).
3. K. N. Sarkar v. State, 1968 Cr LJ 121 (Ori).
4. Surender Kumar Yadav v. State of Bihar, 1989 Cr LJ 1967 (Pat) : 1988 Pat LJR (HC) 172
: 1989 BLJR 25 : 1989 BU 42 /.
5. State of Gujarat v. Lalit Mohan, 1990 Cr U 2341 (Guj) : (1989) 30 Guj LR 952.
6. Om Prakash Bakshi v. State, 1989 Cr LJ 1207 (Del) : (1989) 1 DLT 252 : 1989 Rajdhani
LR 143.
S. 251] Substance of accusation to be stated 2793
1
at all. Where the accusation was not explained to the accused at the
beginning of the trial, he would be entitled to a retrial and not to an
acquittal. Where a case is transferred to a Magistrate, his order
acquitting the accused on the ground that the accusations were not
explained to them as required by s. 251, is illegal. The Magistrate
should himself proceed to explain the accusations, and even if there
has been non-compliance with s. 251, it cannot amount to an
illegality so as to vitiate the proceeding but may be said to be a case of
irregularity which in the absence of any prejudice is curable.2
(ii) Detailed record not necessary.—Section 251 does not
require a Magistrate to make a record of what he has stated to an
accused in explaining an offence. It is sufficient if the proceedings
show that he has done that much and asked the accused to show
cause.3 Although it is not necessary, under s. 251, that the Magistrate
should record the whole of the conversation that took place between
him and the accused, there must be some indication in the record as
to what has been done. The Magistrate must indicate that both parts
of s. 251 were complied with, although a detailed note of the
proceedings is not required to be recorded.4
(iii) Amendment of particulars of the offence/charge.—In
summons cases also if the particulars read out to the accused are
found to be incorrect, corrected particulars can be explained to the
accused and the procedure prescribed in s. 217 followed.5
8. Trial for offence under Special Act—Minor accused—
Procedure.—In criminal cases, it is the accused and not his guardian
who has to be examined under s. 251. Further, the entire trial should
be held in the presence of the accused unless presence is dispensed
with at his request. When the Magistrate was called upon to try the
accused for a criminal offence under a Special Act, it was necessary
for him to adopt the procedure laid down in the Cr. P.C., where there
is nothing to indicate that the criminal offence under a Special Act
was to be tried in any manner other than that provided by the Code.6
9. Accused to be asked, if he has any cause to show.—The law
provides in summons cases that the first thing to be done is to ask
the accused what he has got to say.7 The principle embodied in the
maxim audi alteram partem, viz., that no man should be condemned
unheard, is perhaps the first and most important principle relating to
the mode of administering justice and, in any record of the essentials
of a fair trial, it is the last essential, which could be omitted.8
The way in which the plea is put forward is important, because it
is on that basis the court has to decide whether the plea appears to
be voluntary and true. After recording the plea of guilty, it is

1. 95 Cal LJ 83 : AIR 1955 Cal 558.

2. 1956 Cr LJ 974 (1) : AIR 1956 Assam 127 (1).
3. AIR 1934 Nag 258 : 36 Cr LJ 361, referring to 33 Cr LJ 938 : AIR 1932 Nag 127.
4. 17 PLT 609 : AIR 1936 Pat 501 ; ILR (1952) 4 Assam 452 : AIR 1953 Assam 161.
5. Tola Ram v. State of Rajasthan, 1997 Cr LJ 2156 (Raj).
6. (1957) 1 An WR 232 : 1957 Cr U 936 : AIR 1957 AP 469.
7. 13 Cr LJ 488 : 15 IC 488. See also AIR 1930 Sind 64 : 30 Cr LJ 1076 (1078).
8. AIR 1926 Sind 1 (2).
2794 Ch. XX— Trial of summons-cases by Magistrates [S. 251

necessary for the courts to look into papers produced by the

prosecution in order to find out whether the plea of guilty should be
accepted or not. If it appears from the documents and the papers
produced by the prosecution that even on the facts disclosed by such
papers, there is no likelihood of the charge levelled against a
particular accused being satisfactorily established, the court should
not use the discretion vested in it in favour of accepting the plea of
guilty.'
If the accused pleads not guilty and in his defence files any written
statement, that statement cannot be considered a basis of his
discharge. The court has to record evidence in the case.2 When the
accused confessed his guilt and led no evidence, he will have to
establish as a matter of fact that any failure of justice has been
occasioned by any error or defect in stating the charge.3
When on appearance before the court, the accused once denies
the guilt under this section, he cannot plead guilty afterwards.4 If the
accused raises objection about the maintainability of the complaint,
the Magistrate is competent to decide it first.5
10. In absence of accused pleader may plead guilty.—If the
accused has been granted exemption from appearance and is
represented by counsel, the presence of the accused is not necessary
and the pleader may plead on behalf of the accused.6 The object of s.
251, is to determine whether the accused pleads guilty to the charge
or not and this act can be performed by his counsel where his
personal appearance has been dispensed with under s. 205. The word
"accused" in ss. 251/252 is not limited to the person of the accused
but may include a pleader where he is permitted by the court to
appear through him. When the accused has gone to U.S.A., where he
is a visiting professor, requiring his personal attendance in a
summons case for recording his plea under s. 251, when this act can
be performed on his behalf by his authorised pleader is not justified.7
11. Company charged with offence—Need for compliance with
provisions.—A court is not absolved from following the provisions of
ss. 251 and 313, in a case where a company is charged with an
offence. There can be no doubt that as the company is merely a
juridical person, the charge could not be explained to the company
itself nor could the company personally make a plea. It is also obvious
that the company could not be personally examined in accordance
with the provisions of s. 313. It is possible for the company to be

1. State of Mysore v. Bheemal, 1971 Cr LJ 1961 (Mys).

2. Devendra Kumar Jain v. State (Del. Admn.), 1990 Cr LJ (NOC) 81 (Del).
3. Man Mohan Singh v. State, 1971 Cr LJ 1010 (Del).
4. In re Selvi, 1975 Cr LJ 113 (Mad).
5. Samuel Rajendram Maisa v. K. Krishna Rao, 1998 Cr LJ 231 (AP).
6. S. P. Sinha v. Labour Enforcement Officer, 1976 Cr LJ 76 (Cal) ; Han Narain Nigam v.
Sheetal Prasad, 1992 ACrR 259 ; Managing Director S.K.F. (India) Ltd. v. The President,
S.K.F. (India) Employees Union, 1993 (1) Crimes 1085 (Kant) ; S.R. Jhunjhunwala v.
B.N. Poddar, 1988 (2) Cr LJ 51.
7. S. Nihal Singh v. Aijan Das, 1985 Cr LJ 467 (Del) : (1984) 2 Crimes 625 : (1985)
Rajdhani LR 31 : (1985) 27 DLT 147.
S. 251] Substance of accusation to be stated 2795
represented by somebody and indeed no other means of appearance is
possible. If the company is represented by what may be termed its
agent, then it is the duty of the court to follow the provisions of ss.
251 and 313 as if such agent is the accused.1
12. Omission to comply with section.—It has been held in some
cases that the omission to comply with the provisions of s. 251, is an
illegality which vitiates the trial and not a mere irregularity so as to be
cured by s. 465.2 When the particulars of offence are not stated and
evidence too is not directed to any such particulars, trial is entirely
defective and the conviction cannot stand.3 An order striking off the
case without complying with requirement of section cannot be
sustained.4 If the provisions of s. 251 are not complied with, then that
would in itself be a ground for setting aside the whole trial.5
But a contrary view has been taken in the following cases. It has
been held that an omission to comply with the provisions of s. 251,
would be a mere irregularity which, in the absence of prejudice, would
be cured by s. 465.6 The omission in a summons case to explain the
particulars of sin offence to the accused under s. 251, and to ask him
to show cause at that stage is not (in cases in which the accused is
defended and pleads not guilty) an illegality vitiating the trial,
provided, of course, that no prejudice can be shown to have been
caused to the accused and that the accused has in due course been
examined under s. 313. The provisions of s. 251 ought certainly to be
complied with, and Magistrates should take care that record on its
face establishes that there has been a full compliance with the law. If
a Magistrate proceeds to convict the accused under s. 252 without
first stating the particulars of the offence and hearing any cause
which the accused has to show, there would be a manifest violation of
not only the statute, but also of a fundamental principle of criminal
law. But if a Magistrate proceeds to hear evidence, it is difficult to see
that the object of the statute can be imperilled provided that after
hearing the complainant and his witness the Magistrate gives the
accused the opportunity provided by s. 313 of putting forward his
answer and explanation. Omission to state particulars of offence
unaccompanied by suggestion of any probable failure of justice having
been occasioned thereby would be curable irregularity.8 Conviction
cannot be sustained where omission to comply with section has
prejudiced accused in his defence.9 Majority of the High Courts are of
the view that the mere omission to state particulars of an offence to

1. 51 C r L J 394: AIR 1950 Cal 61.

2. 54 Cal 359 : 31 CWN 167, followed in AIR 1950 Cal 61 : 51 Cr LJ 394 ; 231 IC 398 : 48
Cr LJ 785 ; AIR 1936 Pat 501 : 17 PLT 609 : 165 IC 844.
3. 1941 PWN 677 : AIR 1942 Pat 130.
4. ILR (1952) Patiala 632 : AIR 1953 Pepsu 125 ; 1954 Ker LT 107 : AIR 1954 TC 373.
5. 29 Cr LJ 795 : 32 CWN 1062.
6. 24 Cut LT 493 : 1959 Cr LJ 886 : AIR 1959 Ori 121 ; 24 Cut LT 235 ; 1957 Raj LW 525 :
1957 Cr LJ 994 : AIR 1957 Raj 296 ; AIR 1957 Marrpur 23 : 1957 Cr LJ 872.
7. 16 Pat 97 : AIR 1938 Pat 55 ; 28 Pat 53 : AIR 1949 Pat 323.
8. ILR (1952) 4 Assam 452 : AIR 1953 Assam 161.
9. ILR (1954) Hyd 810 : AIR 1955 Hyd 174 ; 42 Mad 787 ; 28 Cr LJ 511 : AIR 1927 Nag
210 ; 28 NLR 163 : AIR 1932 Nag 127 ; AIR 1941 Pesh 9 ; ILR (1954) Mys 229 : AIR
1954 Mys 164.
Cr. P.C. 178
2796 Ch. XX— Trial of summons-cases by Magistrates [S. 251

the accused under s. 251, is not illegality vitiating the trial, provided
no prejudice has been caused to the accused.1 The non-compliance
with s. 251, per se may not be enough to vitiate the entire trial in
absence of any prejudice.2 There is no compliance with s. 251 unless,
after the offence is explained to him, the accused is also specifically
asked whether he pleads guilty. A failure to comply with either will
render the trial illegal if it has occasioned prejudice to the accused.3
Where the accused are represented by lawyer, full cross-
examination of witnesses has been done, the evidence leaves
impression that the accused are well aware of the allegations levelled
and there is no material to suggest prejudice to the accused or
miscarriage of justice because of omission to comply with the
provisions of s. 251, the omission does not vitiate the trial.4
13. Formal charge not necessary.—In summons cases, for a
charge is substituted the intimation under s. 251.5 Though in a
summons case, there is no formal charge, it is now well-settled that
the accusation made against the accused and intimated to him during
his examination under s. 251, takes the place of a formal charge.6 In
other words, framing of formal charge is not mandatory in a summons
case but substance of the accusation has to be explained to the
accused.7 Therefore, s. 251 only dispenses with a formal charge in a
summons case, but it does not dispense with the statement of the
particulars of the offence for which the accused under s. 251, is to
apprise him of the charge against him.8 In s. 251, the word "accused"
is used in connection with the particulars of the offence being stated
to the accused person, but it is used in the same sense as the word
"charged" in ordinary parlance. Possibly the explanation of the use of
the former instead of the latter word is that it was considered that the
former would emphasize the fact that no formal charge was
necessary. The concluding words of the section appear to contemplate
that, in a summons trial, there is a charge of an offence, although it is
not necessary to embody it in writing.9 The offences under ss. 112 and
123 of the Motor Vehicles Act are triable as summons cases and there
is no question of any charge being framed against the accused
persons.10 In a case tried as a summons case, it is of course not
incumbent on the Magistrate under s. 251, to frame a formal charge
against the accused. But when the prosecution is under an Act of very
recent date with provisions of which the litigants as well as the
lawyers are not quite familiar, it would be proper if the Magistrate
actually frames a charge or summarises the ingredients of the offence

1. Girineni Sriniwasa Rao v. Girineni Radhamma, 1975 Cr LJ 1287 (AP).

2. Halim Munshi v. State of Assam, 1971 Cr LJ 322 ; Manbodh Biswal v. Somaru Pradhan,
1980 Cr LJ 1023 (Ori) : 50 Cut LT 142.
3. 1956 BLJR 19 : 1957 Cr LJ 86.
4. Batu v. State, 1994 Cr LJ (NOC) 340 (Ori).
5. 9 NLR 42 : 14 Cr LJ 230.
6. 1956 Cr LJ 1218 : 22 Cut LT 219 : AIR 1956 Ori 191.
7. Kishori Lai v. Mahadeo, 1993 Cr LJ 1173 (All) : 1992 ACrR 583.
8. State of Mysore v. Shivanna, 1972 Cr LJ 1146 (Mys).
9. 2 Cr LJ 739 (744) : 3 LBR 52 (FB).
10. 24 Cut LT 235.
S. 252] Conviction on plea of guilty 2797
which the accused is required to meet and also reads them over to the
accused before the trial begins.1
252. C o n v i c t i o n o n plea o f guilty.—If the a c c u s e d p l e a d s
guilty, the M a g i s t r a t e s h a l l r e c o r d the p l e a a s n e a r l y a s p o s s i b l e
i n the w o r d s u s e d b y the a c c u s e d a n d may, i n h i s discretion,
c o n v i c t h i m thereon.
Synopsis

1. Legislative history, 2797

2. Sections 251 and 252 apply to summons cases tried summarily, 2797
3. Admission, what amounts to ?, 2797
(i) Plea of each accused in joint trial to be recorded separately, 2798
(a) Plea by one accused on behalf of another, 2799
(ii) Plea when not unqualified admission of guilt ?, 2799
(a) Admission as plea bargaining, 2799
(iii) Illustrative cases, 2799
4. Mode of recording admission, 2800
(i) Recording in words used by accused, 2800
(ii) Admission to be recorded at once, 2801
(iii) Magistrate should make record himself, 2801
(iv) Record of admission of person required to furnish security, 2801
5. Admission not recorded—Conviction cannot be sustained, 2801
(i) Discretion of Magistrate—Taking evidence, 2802
(ii) Plea to be taken as whole, 2802
6. Conviction, 2803
(i) May convict—discretion how exercised, 2803
(ii) Conviction on plea of guilty—Examination of complainant or of accused
unnecessary, 2803
(iii) Conviction on admission by counsel, 2803
(iv) Conviction on erroneous admission of guilt, 2803

1. Legislative history.—Section 252, corresponds to s. 243 of the

old Code, but redrafted without any change in the subject-matter of
the old section.
2. Sections 251 and 252 apply to summons cases tried
summarily.—There is nothing in the Cr. P.C., which makes ss. 251
and 252 inapplicable to summons cases tried summarily. Section 263
(g) is neither in conflict with the provisions of s. 252 nor does it
override it. Having regard to the provisions contained in s. 252, the
proper construction to place upon s. 263 (g) would be that the plea of
the accused, if it amounts to an admission of the offence of which he
is accused, should be recorded as nearly as possible in his own
words.2 The plea of each accused person must be recorded separately
and in his own words.3
3. Admission, what amounts to?—The plea of accused which,
admitting the commission of the offence, further contains an
explanation which exonerates the accused, does not amount to an
admission of guilt and the order convicting and sentencing the
accused on that plea is illegal and without jurisdiction/ In a

1. 19 PLT 415 : AIR 1938 Pat 440.

2. 1950 ALJ 736 ; AIR 1956 All 641 ; AIR 1960 J&K 108.
3. 1959 NU (Notes) 116.
4. AIR 1954 Pat 190.
2798 Ch. XX— Trial of summons-cases by Magistrates [S. 252

prosecution for obstructing a public road with a bullockcart, the

accused on being asked whether on the day in question he drove a
bullockcart on the particular road without permission and thus
caused danger by obstructing the road, answered that he drove the
cart without permission on account of ignorance and begged to be
excused. On that, he was convicted under s. 283, I.P.C. It was held
that the plea was not one of guilty and the conviction was wrong.1
Where the accused who was prosecuted under s. 8 of the U. P.
Cinemas (Regulation) Act, 1955, read along with r. 14 (iv) of the U.P.
Cinematograph Rules, 1951, for seating persons on the floor of the
cinema house, admitted that he did seat visitors on the floor for
certain reasons by giving a lengthy explanation but the Magistrate
without giving him an opportunity to show cause recorded a
conviction under s. 252, it was held that the statement of the accused
did not amount to an admission of guilt which was a condition
precedent for disposing of a case under s. 252. Even if it amounted to
an admission of guilt as the accused wanted to show cause against
the proposed conviction, it was not open to the Magistrate to record a
conviction under s. 252 without following the procedure prescribed by
s. 254 and the subsequent section in Chapter XX, Cr. P.C.2
If the accused is not present before the court and does not tender
a plea of guilt on his own behalf, he cannot be bound by a plea of guilt
'that has been made by some other accused on his behalf.3
(i) Plea of each accused in joint trial to be recorded
separately.—Admissions of truth of the allegations on which a
charge is based cannot legally amount to an admission on the part of
the accused that he has committed the offence of which he is
accused.4 What s. 252, means is that the plea of the accused should
be recorded as nearly as possible in his own words, if it amounts to
admission of the offence of which he is accused. And if in any case,
there are many accused, the plea of each should be recorded
separately and in his own words. If the accusation is read to them
jointly and the plea is recorded jointly, it is bad in law and conviction
cannot be sustained.5
Where a Magistrate records one admission for a number of
accused persons, the admission is bad.6 Where there are more
accused than one, the plea of each of the accused should be
separately recorded as nearly as possible in the words used by him.
Where the Magistrate has recorded the plea of all the accused persons
jointly and taken the signatures of all the accused in a joint
statement, what is actually recorded is not what each of the accused
separately stated. Hence that joint statement cannot be treated as a

1. 25 Cr LJ 707 : AIR 1925 Lah 153.

2. 1961 All Cr R 61 : 1961 All LJ 108.
3. State v. Dhruwa Woollen Mills Pvt. Ltd., 1991 Cr LJ 3142 (Bom) : 1992 (1) Crimes 1144
(Bom).
4. AIR 1931 Nag 100 : 32 Cr LJ 1132, following AIR 1925 Lah 153.
5. State of Mysore v. Shivanna, 1971 Cr LJ 1146 (Mys) ; Anand Vithba v. State of
Maharashtra, 1999 Cr LJ 2857 (Bom).
6. 26 SLR 345 : AIR 1932 Sind 211.
S. 252] Conviction on plea of guilty 2799
1
plea of guilty under s. 252 by all the accused persons. Therefore, in
case there are more than one accused if the accusation is read to
them jointly and the plea is also recorded jointly, it is bad in law and
the conviction on such a plea cannot be sustained.2
(a) Plea by one accused on behalf of another.—If the accused is not
present in the court and does not plead guilty, he cannot be bound by
the plea of guilt made by some other accused on his behalf.3
(ii) Plea when not unqualified <idmission of guilt?—If the
accused pleading guilty at the same time sets forth many
circumstances which exonerates him, the plea is not unqualified
admission of guilt and the conviction of accused cannot be based on
such plea.4 The mere plea which does not contain any admission of
the accused constituting all the ingredients of the offence cannot
render them liable to be convicted on this plea of guilty.5
The accused can be said to have pleaded guilty only and only
when he pleads guilty to the facts constituting ingredients of the
offence without adding anything external into it. However, while doing
this, if he also cleverly introduces the element of defence and
justification towards the alleged wrong committed by him, then such
a composite plea of guilty no more remains the 'plea of guilty' and the
trial court has to proceed further with the trial.6
(a) Admission as plea bargaining.—Where on admission of guilt a
very light sentence is imposed in a serious offence, it would show
likelihood of plea bargaining which is illegal. Where the accused
caused death of a person and injuries to four persons while driving
and dragging them to 40 feet, sentence of imprisonment till rising of
the court and a fine or Rs. 1,000/- was set aside and retrial ordered.7
(iii) Illustrative cases.—Two times accused pleaded not guilty,
third time when he pleaded guilty, the complainant was absent, the
court convicted and sentenced the accused. It was held, conviction
and sentence were not maintainable, fresh trial may be ordered.8 For
conviction, admission by accused must amount to offence.9 In a trial
under s. 447 as a summons case, the accused admitted having
entered upon, and cultivated the land as they claimed the land to
belong to them, even though they had knowledge that the land had
been allotted to the Assam Rifles. The Magistrate instead of
proceeding under s. 254, to hear evidence closed the trial, examined
some old records and negatived the plea of the accused, and

1. 1961 (2) Cr LJ 583 (Manipur) ; ILR (1959) 9 Raj 1298.

2. State of Mysore v. Shivanna, 1971 Cr LJ 1146 (Mys).
3. State of Maharashtra v. M/s Dhruwa Woollen Mills, 1991 Cr LJ 3142 (Bom) : 1992 (1)
Crimes 1144 (Bom).
4. State of Himachal Pradesh v. Shri Rama Mai, 1970 Cr LJ 1303 (Del-HB).
5. State of Madhya Pradesh v. Kapur Chand Shankar Lai Malvi, 1973 Cr LJ 417 (MP).
6. State v. Dineshchandra Haijibhai Patel, 1994 Cr LJ 1393 (Guj).
7. State of Gujarat v. Lakshman Mangaji Mena, 1998 Cr LJ 2161 (Guj). Also see State of
Karnataka v. Thimmanaika, 1992 (1) Crimes 741 ; Thippeswamy v. State of Kamataka,
AIR 1983 SC 747.
8. Warmick F. Wilson v. State of Meghalaya, 1984 Cr LJ (NOC) 29 (Gau).
9. AIR 1962 Pat 244 ; 17 NLJ 250.
2800 Ch. XX— Trial of summons-cases by Magistrates [S. 252

convicted and sentenced them. It was held that the statement of the
accused was not an admission of the offence and the procedure
followed by the Magistrate was not a mere irregularity, but an
illegality, which vitiated the trial, because the accused persons were
denied the right to prove their contention. The admission referred to
in the above circumstances could not but mean that the reference
was to the admission of having gone on the land.1 See, however, the
under mentioned decision. When the particulars of the offence under
s. 4(1) (a) of the Madras Prohibition Act in the case are stated to the
accused and he is asked to show cause against conviction as required
under s. 257, and the answer is "it is true" it amounts to an
admission of truth of the accusation. That is sufficient to bring a case
within the operation of s. 252, and it is not necessary that the
accused should state : "It is true I have committed the offence."2
4. Mode of recording admission.—If the accused is already
present in the court on the date of cognizance without issuance of
summons, the Magistrate may record the plea of guilty and convict
him on the same day.3
(i) Recording in words used by accused.—The admission of the
accused is required to be recorded in his words as nearly as possible,
because the right of appeal depends on whether he has really pleaded
guilty or not.4 Whereas s. 252 is confined to the admission of the
commission of the offence only, s. 313 covers a much wider field, for
example if an accused does not plead guilty and is examined under s.
313, his examination need not be recorded in full in the language in
which he is examined. Section 281 is a general provision dealing with
the examination of the accused in general, whereas s. 252, contains a
special provision. According to well-settled rules of construction, this
special provision contained in s. 252, should override the general
provision.5 The law enjoins, and that for a very good reason, that the
admission shall be recorded as nearly as possible in the words used
by the accused. Omission to comply with the law in this respect
cannot be countenanced as it invariably leads to complications.6
Where the accused's plea of guilty was not recorded in accordance
with s. 252 and the accused also denied the plea, the conviction could
not be upheld.7

The plea of guilty must be recorded in the words used by the

accused and the failure is incurable irregularity.8 If the accused
knows Tulu and the Magistrate being not acquainted with that

1. 1957 Cr LJ 1427 (1) : AIR 1957 Manipur 36 (1).

2. 1955 Andhra WR 258.
3. Shaukat Ali v. State of Bihar, 1989 Cr LJ 146 (Pat).
4. 1889 AWN 81 ; AIR 1956 Ajmer 2.
5. AIR 1956 All 641.
6. AIR 1928 Cal 243 ; 1950 AU 529 : 1956 BLJR 19 : 1957 Cr LJ 86 ; AIR 1956 Mys 63 ;
AIR 1960 J&K64.
7. 36 CWN 132.
8. In re, N. Abhimannu, 1977 Cr LJ (Notes) 46 (Mad).
S. 252] Conviction on plea of guilty 2801
language recorded the plea in English on interpretation made by some
one else, the recording of the plea is not proper.1
If the provision is not followed, there is no record to the appellate
or revisional court to know in what actual words accused pleaded
guilty and whether that amounts to plea of guilty or not. The
provision is very important and substantial, because a plea of guilty
will debar the accused from preferring an appeal against the
conviction. If the Magistrate makes a note only and records that both
the accused pleaded guilty, it is not a plea "as nearly as possible in
the words of the accused."2 The Magistrate should himself record the
plea of accused in his words, and ensure that it is free and voluntary.3
(ii) Admission to be recorded at once.—The admission of the
accused should be recorded at once, at the time of the trial and not
afterwards from the rough notes, nor from the Magistrate's memory.4
(iii) Magistrate should make record himself.—The Code does
not specifically provide that the necessary memorandum or record
should be prepared by the Magistrate in his own hand-writing. But no
careful Magistrate would delegate this function to his clerk. Judicial
work must be performed very carefully and it is essential that the
Magistrate should himself make a record of the fact that the
particulars of the offence were explained to the accused and should
himself record the admission made by the accused as nearly as
possible in the words used by the accused.5
(iv) Record of admission of person required to furnish
security.—A statement made by persons against whom proceedings
are taken under Chapter VIII, supra, expressing willingness to furnish
security, should, having regard to this section, be recorded as nearly
as possible in the words used by him, and where a Magistrate failed to
do so, the proceedings are liable to be quashed.6
5. Admission not recorded—Conviction cannot be sustained.—
An order convicting an accused on his own admission is not a final
order, as it is open to revision by a superior court which has to be
satisfied that what the Magistrate thought to be an admission of an
offence by the accused, was really such an admission. In the absence
of any record of the statement of the accused, the superior court is
deprived of the chances of forming its own independent conclusion
which might often result in serious miscarriage of justice. Where the
so-called admission of the accused was not recorded at all, the
conviction cannot be upheld.7 Where the admission of the accused
has not been reduced to writing and the accused had pleaded not

1. Aithappa Ghannan v. State of Mysore, 1973 Cr LJ 360 (Mys).

2. Chhut Bhagirath v. State of Gujarat, 1972 Cr LJ 548 (Guj) ; Sasidhara Kurup v. UOI,
1994 Cr LJ 375 (Gau).
3. C. Subbarayudu v. State of A.P., 1996 Cr LJ 1472 (AP) ; B. Rajanna v. State of
Karnataka, 1996 Cr LJ 1820 (Kant).
4. 15 Mad 83 (87) : 2 Weir 326.
5. AIR 1956 Ajmer 2 : AIR 1956 Cr LJ 1.
6. 17 MLJ 438.
7. ILR (1958) 10 Assam 127 : 1961 (1) Cr LJ 227 : AIR 1961 Assam 19.
2802 Ch. XX— Trial of summons-cases by Magistrates [S. 252

guilty originally, the conviction of the accused cannot be sustained.1

Where the Magistrate did not record the plea in the words of the
accused but simply recorded that the accused pleaded guilty and
thereafter recorded the statement of the complainant and convicted
the accused, it was held that the accused should be retried afresh.2
A Magistrate can record a conviction against an accused on his
own plea only when the accused has admitted the commission of the
offence and has not shown sufficient cause against his proposed
conviction.3
(i) Discretion of Magistrate—Taking evidence.—If a Magistrate
exercises his discretion by not accepting the plea of guilty, he must
satisfy himself that the evidence which he hears justifies conviction or
else he should record an order of acquittal. If he hears evidence and it
does not prove the facts of the charge, it is not open to him to go back
and accept the plea of guilty, and convict the accused.4 The Magistrate
may take evidence in both the cases, viz., when there is a plea of
guilty and when there is not. But once he decides to take the
evidence, both the cases are to be treated in the same manner.5
The Magistrate accepted the plea of the accused as of guilty, but in
spite of this, he decided not to act upon it. The Magistrate in that case
was technically bound to record such evidence as might have been
produced on behalf of the prosecution, hear the accused and take his
evidence and then to proceed to judgment. The Magistrate if he does
not convict the accused on his plea of guilty cannot acquit him
without taking evidence.6
(ii) Plea to be taken as whole.—If the reply of the accused under
s. 252 is taken as a basis for conviction, it must be taken a whole and
not merely a part of it.7
The court should not be astute to construe technical words
inadvertently used by accused persons not trained to the law against
them, but should look to the statement as a whole and place a fair
and liberal construction on it after giving the benefits of every
reasonable doubt to the accused.3 In a case where the driver of a
motor loriy is charged with rash driving and thereby causing hurt to a
person, it was observed that when the accused used the word "guilty",
he must only be taken to have meant that he admitted causing injury
to the complainant and no more, especially when the remainder of his
statement made it clear that he considered the occurrence to be an

1. 1957 MPC 640 (2) : 1957 MPLJ 754.

2. AIR 1962 J&K 23.
3. 1961 ALJ 108.
4. 33 Bom LR 340 : AIR 1931 Bom 195 (FB). (If the court decides to accept the plea of
guilty under s. 252 and convict, he may call evidence to acquaint himself with the facts
to enable him to arrive at a proper conclusion as to the sentence to be passed. But that
is a different matter. He is not there hearing evidence to show whether the accused was
guilty or not).
5. 1961 MPLJ 889 : 1962 (1) Cr LJ 43 ; 1961 MPLJ 1187.
6. 1960 MPLJ (Notes) 6.
7. 1961 MPLJ 889: 1962(1) C r L J 43.
8. 30 NLR 317 : AIR 1934 Nag 65.
S. 252] Conviction on plea of guilty 2803
unfortunate accident which he did his best to avoid, and which was
caused, if anything, by the stupid and bewildering behaviour of the
persons on the road, and that it was anything but a plea of guilty.1
Charge for offence under Essential Services Maintenance Ordinance (I
of 1960), s. A—Admission of accused without understanding the
nature of the accusation—Defect not inconsequential—Accused
prejudiced in defence—Conviction not valid.2
6. Conviction
(i) May convict—discretion how exercised.—It is judicial
exercise of discretion to decide whether to convict on the plea of guilt.
The Magistrate has to satisfy himself that the accused has completely
understood the accusation and is pleading guilty after realising the
consequences likely to follow. The Magistrate has to apply his mind to
all the facts and circumstances including the reasons which may have
induced the accused to plead guilty.3
(ii) Conviction on plea of guilty—Examination of complainant
or of accused unnecessary.—If sin accused in summons case admits
that he has committed the offence of which he is accused, the
Magistrate may convict him under s. 252 without proceedings to hear
the complainant and taking the evidence in support of the
prosecution.4 In such a case, it would obviously be unnecessary to
examine the accused under s. 313.5
(iii) Conviction on tidmission by counsel.—It is an incorrect
procedure to convict an accused in a summons case on an admission
by his counsel without examining him or recording any evidence.6 But
where the court dispenses with the personal attendance of an accused
and permits him to appear by pleader under s. 205, it can act upon a
plea given by his pleader in a case falling under ss. 251 and 252.7 The
word 'accused' in ss. 251 and 252 is not limited to the person of the
accused but may include a pleader where he is permitted by the court
to appear through him. Such permission is necessarily implied where
the court proceeds to examine the pleader. The presence of the
accused in court does not alter this position. The plea given by the
pleader can be a basis of conviction.8
(iv) Conviction on erroneous admission of guilt.—To the
objection that there was in reality, no admission of guilt and that,
therefore no conviction could proceed under s. 252, reliance on ss.
215 and 465 can be of no avail.9 Where the questions put to the

1. Ibid.
2. 1961 Ker LT 465 : 1962 (I) Cr LJ 429 : AIR 1962 Ker 78.
3. State of Karnataka v. Thimmanaika, 1992 (1) Crimes 741 (Kant) ; State of Karnataka v.
Mallappa Shidlingappa, 1980 (1) KLJ 182.
4. 15 Lah 60: AIR 1961 Tripura 41.
5. 15 Lah 60 : AIR 1934 Lah 96. See also AIR 1926 Sind 1 (FB).
6. 83 IC 883 ; AIR 1925 Oudh 305 (2).
7. 50 Bom 250 : 1957 MPC 119: 1957 Cr LJ 672. (It is open for the pleader to make the
necessary answers and either plead guilty or claim to be tried under s. 257 ; AIR 1963
Pat 371 (Pleader can be examined under s. 242).
8. 1960 MPLJ 133 : AIR 1960 Cr LJ 833 : AIR 1969 MP 186. See also AIR 1962 Pat 244.
9. 1958 Ker LT 1136 : AIR 1959 Ker 248.
2804 Ch. XX— Trial of summons-cases by Magistrates [S. 254

accused were printed and the plea of the accused also could not be
recorded as nearly as possible in the words of the accused order of
conviction was held not proper.1
253. C o n v i c t i o n on plea of guilty in absence of accused
in petty cases.—(1) Where a summons have been issued under
Section 206 and the accused desires to plead guilty to the
charge without appearing before the Magistrate, he shall
transmit to the Magistrate, by post or by messenger, a letter
containing his plea and also the amount of fine specified in the
summons.
(2) The Magistrate may, in his discretion, convict the
accused in his absence, on his plea of guilty and sentence him
to pay the fine specified in the summons, and the amount
transmitted by the accused shall be adjusted towards that fine,
or where a pleader authorised by the accused in this behalf
pleads guilty on behalf of the accused, the Magistrate shall
record the plea as nearly as possible in the words used by the
pleader and may, in his discretion, convict the accused on such
plea and sentence him as aforesaid.
Synopsis

1. Legislative history, 2804

2. Scope of provision, 2804

1. Legislative history.—The section is new and was enacted on

the recommendations of the Law Commission.
The incorporation of the section in the Code was necessary in view
of the insertion of s. 206, where it has been provided that in petty
cases the Magistrate may issue special summons to the accused and
the accused then may plead guilty without appearing in the court and
this section lays down the procedure for such cases.
2. Scope of provision.—The section provides that when a
summon has been issued under s. 206 and the accused wants to
plead guilty to the charge without appearing before the Magistrate, he
will have to transmit to the Magistrate, by post or by messenger, a
letter containing his plea and also the amount of fine specified in the
summons and then the Magistrate may, in his discretion, convict the
accused in his absence and the amount sent by him shall be adjusted
towards fine and when a pleader authorised by the accused pleads
guilty on his behalf, the Magistrate shall record the plea as nearly as
possible in the words used by the pleader and then may, in his,
discretion convict the accused on such plea and sentence him.
254. Procedure when not convicted.—(1) If the Magistrate
does not convict the accused under Section 252 or Section 253,
the Magistrate shall proceed to hear the prosecution and take
all such evidence as may be produced in support of the

1. B. Rajanna v. State of Karnataka, 1996 Cr LJ 1820 (Kant).

S. 254] Procedure when not convicted 2805
p r o s e c u t i o n , a n d also t o hear the a c c u s e d a n d take a l l s u c h
evidence a s h e p r o d u c e s i n h i s defence.
(2) T h e M a g i s t r a t e may, if he t h i n k s fit, on the a p p l i c a t i o n of
the p r o s e c u t i o n or the accused, i s s u e a s u m m o n s to a n y
witness directing h i m to attend or to produce any document or
other thing.
(3) T h e M a g i s t r a t e may, before s u m m o n i n g a n y w i t n e s s on
s u c h a p p l i c a t i o n require t h a t the r e a s o n a b l e expenses o f the
w i t n e s s i n c u r r e d i n a t t e n d i n g for the p u r p o s e s o f the t r i a l b e
deposited i n court.
Synopsis

1. Legislative history, 2805

2. Duty of Magistrate under provision, 2805
(i) Provision mandatory, 2806
(ii) No pleading guilty after denial of guilt, 2806
(iii) Examination of prosecution and defence witnesses, 2807
3. Examination of complainant if necessary, 2807
4. Obligation to examine witnesses produced by prosecution, 2807
(i) Complainant's refusal to be examined, 2808
(ii) Evidence let by any person, 2808
5. Prosecution witnesses, 2808
(i) Duty of prosecution to call witnesses, 2808
(ii) No conviction without cross-examination, 2809
(iii) Filing of documents by prosecution—Accused cannot compel their
production, 2809
6. Hearing accused, 2809
(i) Hearing accused after examination of prosecution witnesses, 2809
(ii) No prosecution evidence—No question of hearing accused, 2809
(iii) Examination of accused under s. 313, if necessary, 2810
(iv) Written statement filed by accused can be taken into consideration, 2810
7. Obligation to examine witnesses produced by accused, 2810
8. Magistrate, if bound to issue process [Sub-section (2)], 2810
(i) Securing attendance of witnesses obligatory once process issued, 2811
(ii) Application by accused for summoning witnesses when may be
refused, 2811
9. Recall of prosecution witnesses at accused's instance, 2811
10. Compelling attendance of witness already summoned—Magistrate's
discretion, 2812
11. Expenses of witness [Sub-section (3)], 2812

1. Legislative history.—Section 254, corresponds to s. 244 of the

old Code but the word "complainant" has been substituted by the
word "prosecution" and the proviso to sub-s. (1) of old s. 244 having
become unnecessary has been omitted.
2. Duty of Magistrate under provision.—When an accused
appears and does not admit having committed the offence, the
Magistrate is bound to hear the prosecution and take the evidence he
produces in support of the prosecution. Until he does so, he has no
jurisdiction to record an order of acquittal.1 An accused person may
admit some or even all of the facts alleged by the prosecution, but if

18 All 221 (223) : 1896 AWN 35 ; Rat 539 ; ILR (1954) TC 77 : AIR 1954 TC 439 ; 1962
MPLJ 443.
2806 Ch. XX— Trial of summons-cases by Magistrates [S. 254

he pleads not guilty, the court trying him is bound to proceed

according to law by examining the witnesses and giving an
opportunity to the accused to cross-examine the witnesses for the
prosecution and adduce his own evidence. Where the accused not
only denied the charge in the complaint but admitted only some of the
allegations of the prosecution, the Magistrate would be erring in law
in deciding the case without taking evidence.1 A Magistrate has
authority to dismiss a complaint before issuing process but when the
accused as well as the complainant and his witnesses are in
attendance, he is bound to follow the procedure laid down in ss. 251
and 254.2
(i) Provision mandatory.—The requirements of s. 254, in
summons cases are mandatory and the Magistrate is bound to comply
with them, before the accused is required to enter upon his defence.
The provision of s. 254 is based on the well known maxim "Audi
Alteram Partem", (No one to be condemned unheard) and failure to
comply with this section is an illegality which is not curable.3 If the
accused does not plead guilty, the Magistrate should proceed to hear
the prosecution and take all such evidence as it produces and also to
hear the accused and take all such evidence as he produces in his
defence.4
(ii) No pleading guilty after denial of guilt.—Where a
Magistrate adopts the procedure prescribed by s. 254 on the footing
that there was no admission of guilt on the part of the accused
person, he is not competent to take a further plea from the accused
person of guilty and relieve himself of the duty of examining other
prosecution witnesses.5 Where the accused, on being asked by the
Magistrate, stated that he had not committed the offence, but on the
adjourned date a statement signed by the accused, in which he
admitted his guilt, was put into court and the Magistrate having
asked the accused whether he had signed the statement, the accused
admitted his guilt and thereupon the Magistrate convicted the
accused without taking any evidence, it was held that there being no
provision in the Cr. P.C., authorising the Magistrate to question the
accused a second time, he had clearly gone wrong in doing so and in
convicting the accused on the plea of guilty, he was bound to proceed
under s. 254. Where there was no admission by the accused and
conviction thereon under s. 252, the Magistrate is bound to hear the
case and take the evidence adduced by both parties. It is not open to
the Magistrate under such circumstances to obtain a further plea of
guilty from the accused or to acquit him without recording the
prosecution evidence.6 Once the accused denies the guilt under s.
251, he cannot plead guilty afterwards.7

1. 9 Bom LR 1346 (1347).

2. 2 Beng LR SN xv.
3. Girineni Srinivasa Rao v. Girineni Radhamma, 1975 Cr LJ 1287 (AP).
4. In re, Selvi, 1975 Cr LJ 113 (Mad).
5. AIR 1928 Cal 242.
6. 1960 Jab LJ 1015 : 1961 MPLJ 1187.
7. Inre, Selvi, 1975 C r L J 113 (Mad).
S. 254] Procedure when not convicted 2807
(iii) Examination of prosecution and defence witnesses.—A
Magistrate cannot acquit the accused on a consideration of the
complainant's statement alone.1 Where trial is held without affording
any opportunity to prosecution to produce its evidence, it is no trial at
all and must be deemed a nullity.2 The Magistrate is also bound to
hear the accused and examine his witnesses.
Where there was no plea of guilty on the part of the accused and
no examination of witnesses on the part of the prosecution and the
Magistrate relied on an admission alleged to have been made by the
accused and recorded in a report written by a police-officer in another
case, the procedure adopted was wholly irregular, and the conviction
should be set aside.4 A Magistrate cannot rely on statements made to
him out of court.5 The procedure for the trials of case wherein the
children commit offences is prescribed by Rule 3 of the Rules framed
under the Madras Children Act. According to that rule, the procedure
is that of summons procedure whether the case is one of summons or
warrant case. In a trial of juvenile offender under s. 4(1) (g), Madras
Prohibition Act, the accused pleaded not guilty. The case was
adjourned from time to time for recording prosecution evidence but
actually no evidence was recorded. Ultimately, the juvenile court, on
the report of the probation officer who was not examined, certified
that the offender should be sent to a senior certified school for three
years in the best interests of the body. It was held that there was a
total disregard of the procedure prescribed by s. 254, and the order
passed was illegal and must be set aside.6
3. Examination of complainant if necessary.—Section 254 does
not make the examination of the complainant himself in a summons
case absolutely necessary; it only says that he shall be heard.7 The
hearing of a complainant does not necessarily mean his examination.
It merely amounts to a granting of audience. The examination of the
complainant is not essential under the procedure laid down in the
Press (Objectionable Matter) Act, 1951.9
4. Obligation to examine witnesses produced by
prosecution.—Under s. 254, the Magistrate is bound to examine
witnesses that are produced and he has no discretion in the matter.10
The proper course would be to examine the witnesses and then
proceed with the case under s. 255. The acquittal under s. 255
without examining the witnesses, who are actually present, is in any
view unsustainable." This last-mentioned section imposes a duty on
the Magistrate to take all such evidence as may be produced in

1. 20 Mad 388: 2 Weir 251.

2. 1960 All U 880 : 1961 (2) Cr LJ 185 : AIR 1961 All 447.
3. 6 WR 75 (Cr).
4. 9 CWN 816.
5. 14 Bom 572 (573).
6. (1954) 2 MU 659 : 1955 Cr U 176 (2).
7. 24 CWN 199 : 21 Cr U 252.
8. ILR (1945) Nag 419 : AIR 1945 Nag 127.
9. AIR 1954 Ajmer 19.
10. 13 WR 63 (64) (Cr). See also 2 PLT 330.
11. 1960 Ker LT 479 : 1960 Mad U (Cr) 378.
2808 Ch. XX— Trial of summons-cases by Magistrates [S. 254

support of the prosecution, and where such witnesses are material

and are present in court and are sought to be produced, their
evidence cannot be shut out merely on the ground that their names
were not mentioned in the list.1 A Magistrate cannot, under s. 254 >
dispense with any witness whom the prosecution wishes to examine.
But he is not bound to examine witnesses not produced.3
(i) Complainant's refusal to be examined.—Where the
complainant declines to be examined, it is the duty of the Magistrate
to proceed to take the evidence of his other witnesses before
dismissing the complainant, although in any event, a strong
preliminary presumption against the truth of the complainant's case
would arise from his contumacious refusal to allow himself to be
examined. An order of acquittal purporting to be passed under s. 255
(1) without so examining the other witnesses is a wrong order.4
(ii) Evidence let by any person.—The section states that the
Magistrate shall take "all such evidence as may be produced in
support of the prosecution", but that does not mean that any person
can produce evidence in support of the prosecution. Such a broad
meaning may affect the entire course of justice. Primarily it is the
right of the prosecution to adduce evidence in its support. But when
an individual comes in the court alleging that he has evidence in
support of the prosecution, which he has not so far disclosed to any
authority, that evidence may be suspected but cannot be rejected on
that ground alone and the help of s. 311 may be taken. The words "all
such evidence as may be produced in support of the prosecution"
should not be understood in narrow sense. The words are sufficiently
elastic to allow any person to let in evidence in support of the
prosecution with the consent of the court and the court in such cases
has jurisdiction and a duty to exercise its powers under s. 311, to
decide abovit the right to lead any such evidence.5
5. Prosecution witnesses
(i) Duty of prosecution to call witnesses.—It is prima facie the
duty of the prosecution to call all the witnesses who prove their
connection with the transaction in question and who from such
connection must be able to give important information.6 If the
prosecution fails to produce witnesses in spite of several directions
and even an application is not made to issue summons or to procure
the presence of the witnesses, the accused may be acquitted. But if
there is a reasonable belief that any particular witness, if called,
would not speak the truth, that might be a sufficient reason for not

1. I960 Raj LW 373 : AIR 1961 Raj 42.

2. 2 Weir 305.
3. 4 MHCR App 29 : 2 Weir 304.
4. 28 Cr LJ 511 : AIR 1927 Nag 210.
5. Chillonnoodathil M. Augustin v. State of Kerala, 1984 Cr LJ 1897 (Ker) : 1984 Ker LT
859 ; State v. Nand Kishore, 1967 Cr LJ 1369 (Raj).
6. 8 Cal 121.
7. Santhamma R. Amma v. Kunju Pillai, 1981 Cr LJ 247 (Ker) : 1980 Ker LT 393 : 1980
Mad LJ (Cri) 448.
S. 254] Procedure when not convicted 2809
1
calling him. There is, however, no similar duty on the part of the
accused and no unfavourable inference can be drawn against the
accused from the fact of his not having called any witness.2
(ii) No conviction without cross-examination.—Where an
accused denies the truth of the allegations made by the complainant,
he cannot be convicted without being given an opportunity to cross-
examine the prosecution witnesses.3 Under the procedure laid down
for the trial of summons cases, the accused has no right to postpone
the cross-examination of any prosecution witness, as in the case of
the trial in a warrant case, but, if the cross-examination was
postponed in accordance with the direction of the Magistrate, the
Magistrate is bound to give further opportunity to the accused to
cross-examine the witness. Without such a cross-examination, the
evidence will not be legally admissible."
(iii) Filing of documents by prosecution—Accused cannot
compel their production.—When the prosecution is its own Judge of
the order in which witnesses are to be produced, it follows that
documents which require to be proved can lawfully come on the
record only when the witnesses who prove those documents are
examined, and that, therefore, the stage for the coming on the record
of the provable documents will be in the discretion of the prosecution,
and the accused cannot force the prosecution to produce any
documents at any stage.5
6. Hearing accused.—The power given by s. 254 (1) to the trial
court to hear the accused can be exercised at any time when the
accused wants to be heard.6
By passing the stage of hearing the accused and rushing to ask
him to enter upon his defence is illegality not of a trivial kind.7
(i) Hearing accused after examination of prosecution
witnesses.—Under s. 254, after the witnesses for the prosecution are
examined, the Magistrate must hear the accused and if the accused
admits his guilt, there is no reason why the court cannot accept that
admission and convict the accused and particularly so in a case
where the prosecution witnesses are not cross-examined at all.8
(ii) No prosecution evidence—No question of hearing
accused.—Under the section, it is the duty of the Magistrate to
proceed to hear the prosecution and to take all such evidence as is
produced in support of the prosecution, and then he has to hear the
accused and take evidence in the defence. When there is no evidence
at all in support of the prosecution, no question of hearing the

1. 2 Weir 378.
2. 8 Cal 121.
3. 6 WR 75 (Cr). See also 54 All 212 : AIR 1931 AU 621.
4. 3PLT347.
5. 1952 All LJ 668 : AIR 1953 All 197.
6. PakLR (1950) Lah 349: AIR 1950 Lah 169.
7. ILR (1952) Patiala 632 : AIR 1953 Pepsu 125.
8. (1957) 1 MLJ 151 : AIR 1957 Mad 795 : 1957 Cr LJ 1423.
2810 Ch. XX— Trial of summons-cases by Magistrates [S. 254

accused and taking defence evidence or taking statement of accused

under s. 313 arises.1
(iii) Examination of accused under s. 313, if necessary—See
comments under s. 313, infra.
(iv) Written statement filed by accused can be taken into
consideration.—There is no provision in the Cr. P.C. for a written
statement of an accused being filed in a trial of summons cases. No
doubt there is no bar in the Cr. P.C. to take such statements filed in a
summons case into consideration in so far as they concern that
particular accused.2
7. Obligation to examine witnesses produced by accused.—A
conviction by a Magistrate who was formally tendered on behalf of the
accused, is illegal.3 Where the record did not show that any enquiry
was made of the accused as to whether he had witnesses to produce,
the conviction was set aside.4
In a case where the burden is on the accused, the attempt of the
accused to establish his innocence by defence evidence cannot be
thwarted. In a defamation case, as the publication is admitted by the
accused and as they want to justify the publication by establishing
that it is nothing but truth and made in good faith, the necessity to
examine defence witnesses cannot be underestimated. The order of
the Magistrate refusing to examine all the witnesses in the list filed by
the accused is liable to be set aside.5
8. Magistrate, if bound to issue process [Sub-section (2)].—
Under s. 254 (2), a Magistrate is under no obligation to issue process
in summons cases to compel the attendance of a witness on
application.6 But the Magistrate must either grant or refuse the
application for summoning the witnesses, and cannot simply "file" it.7
He must consider it and pass orders on it.8
The power of a Magistrate to summon witnesses in summons
cases is fully and exhaustively laid down in s. 254 (2). The power is
wide enough to include issuing summons against witnesses other
than those mentioned in the list prepared under s. 204.9 As regards
the value to be attached to the evidence of a person whose name was
not included in the list, it has to be left to the criticism of the party
affected that such evidence should not be believed; but that is a
matter affecting the credibility of evidence only.10

1. Kishori Chandra v. Bhavanagar Municipality, 1969 Cr LJ 1248 (Guj).

2. (1963) 5 Ori JD 65.
3. 4 Beng LR App 77 (80) : 12 WR 77 (Cr).
4. 7 PR 1884 (Cr).
5. State v. Uttam Bhiku Prajapati, 1992 Cr LJ 626 (Guj).
6. 21 C r L J 385 : 55 IC 993.
7. 6 CWN 548 (549).
8. 41PLR 804 . AIR 1940 Lah 58.
9. 1960 All LJ 67 : 1960 Cr LJ 865 (1) : AIR 1960 All 394 : AIR 1957 Cal 332 : 1957 Cr LJ
630.
10. AIR 1957 Cal 332 : 1957 Cr LJ 630.
 S. 254] Procedure when not convicted 2811
Though sub-s. (2) says that Magistrate may, if he thinks fit, issue
process on the application of the prosecution or accused to witnesses,
yet if the prosecution or the accused makes an application for issue of
summons to witnesses under the sub-section, it becomes the duty of
the Magistrate to issue summons to the witnesses and to secure the
witnesses by exercising all the powers given to it under the Code and
if still the presence of witnesses is not secured and the prosecution
also either on account of pronounced negligence or recalcitrance does
not produce the witnesses after being given sufficient time and
opportunities to do so, then there is no other alternative and the court
will be justified in acquitting the accused for want of evidence to prove
the prosecution case under s. 255.1 The accused has a right to
produce evidence to defend himself and the courts cannot refuse to
summon the witnesses unless it is being done to prolong the trial
unnecessarily. Even where there is strong evidence against the
accused, he will have a right to produce evidence to rebut it.2
(i) Securing attendance of witnesses obligatory once process
issued.—Once the court issues summons, then the court is bound to
take steps for securing the attendance of witnesses upon whom the
process has been issued and instead if the court acquits the accused
treating it as close of the prosecution evidence, the order will be
unsustainable.3 Therefore, the court should see that its summons and
warrants are duly executed and enforce the attendance of witnesses
before it acquits the accused.4
(ii) Application by accused for summoning witnesses when
may be refused?—An application for summoning witnesses made by
an accused person can only be refused if the court is satisfied that
such application is made vexatiously or in order to delay the
proceedings.5 Therefore, an accused should apply before hand to the
Magistrate for summons to enforce the attendance of any witness who
is not likely to appear without summons.6 Section 254 does not enable
an accused person to wait till the case for the prosecution is closed
and then to apply for summoning his evidence. It is intended to
supply a procedure for the expeditious trial of a summons case.
Under s. 254 (2), a Magistrate has discretion to allow an application
for summoning evidence, but an application to that effect must be
made at the appropriate time and should not be delayed so as to
deprive the Magistrate of his discretion to grant it. If the application is
delayed, the Magistrate would be justified in refusing it.7
9. Recall of prosecution witnesses at accused's instance.—The
principle of s. 247 applies even to a summons case. When once a
summons has been issued to a prosecution witness at the request of

1. State v. Virappan, AIR 1980 Mad 260.

2. Sreedhar Pillay v. P.J. Alexander, 1992 (3) Crimes 764 (Ker).
3. State of Karnataka v. A. Devaiah, 1980 Cr LJ 40 (Kant) ; (1979) 1 Kant LJ 355 : 1979
Mad LJ (Cri) 703 : ILR (1979) 1 Kant 1377.
4. State of M.P. v. Kalu Thamar, 1972 Cr LJ 1639 (MP).
5. ILR (1953) Mys 388 : AIR 1954 Mys 12.
6. 14 WR 76 (Cr).
7. ILR (1945) Kar 107 : AIR 1945 Sind 231.
Cr. P.C. 179
2812 Ch. XX— Trial of summons-cases by Magistrates [S. 254

the accused and the witness is before the court, there is no

jurisdiction in the court to dictate to the accused the terms upon
which the examination of the witness shall be conducted. If the
accused wishes to put questions in cross-examination, the Magistrate
is bound to allow it.1 The accused can call a prosecution witness
already examined, in defence.2
10. Compelling attendance of witness already summoned—
Magistrate's discretion.—In the present Code, the words used are
"summon any witness directing him to attend or produce any
document". Under the present Code, evidently, the court cannot
compel a witness to appear before it if the witness refuses to appear.
If the witness refuses to appear, probably he may be liable for
disobedience of summons, and the party, whether a complainant or
accused, is not entitled to ask the court, as a matter of right, to
compel the attendance of any witness who does not care to attend in
obedience to a summons. The Magistrate is not bound to re-issue the
summons if a witness summoned by him does not appear. It is in his
discretion to issue fresh summons if he likes, but the Code does not
oblige him to issue fresh summons to the witnesses to whom
summons have once been sent.3 But see contra holding that there is
no discretionary power given in summons cases by s. 254 to refuse to
compel the attendance of a witness upon whom the court has already
issued process.4 The Lahore High Court has held, that where a
Magistrate has granted the first application, the presumption is that
he would also grant a second application when the witnesses do not
appear in court.5
See also the undermentioned ruling. Case instituted on police
report—Witness absent and warrant issued for his arrest. It was held
that, having issued the warrant, the court ought to have enforced his
attendance before acquitting the accused. Even if the police fail to
perform their duty in producing the witnesses, the court has a duty to
enquire into the offence coming up for trial before it and especially in
a case where the Magistrate had issued a warrant of arrest for the
apprehension of the witness. Therefore, the order of acquittal has to
be set aside.6
11. Expenses of witness [Sub-section (3)].—Where the case
under trial is a summons case, sub-s. (3) enables a Magistrate to
demand from the party the expenses to be incurred by his witnesses.
An order by a Magistrate refusing to summon witnesses for the
defence without their expenses being paid by the accused, although
legal, should be passed very sparingly and is an improper order in a
case where the accused is unable or unwilling to deposit the money,
and the result is that he is convicted without his witnesses being

1. 29 Cr LJ 308 : AIR 1928 Pat 253.

2. Mrs. Madhu Bansal v. Shri Dinesh Kumar, 1997 Cr LJ 2020 (P&H) : 1997 (1) Crimes
141 (P&H).
3. 91 IC 252 : AIR 1926 Mad 361.
4. 14 PLT 453 : AIR 1933 Pat 494.
5. 41 PLR 804 : AIR 1940 Lah 58.
6. (1963) MLJ (Cr) 416.
S. 255] Acquittal or conviction 2813
heard.' On the complainant's failure to pay fees for summoning
witnesses under s. 254, the Magistrate must deal with the case on
such evidence as he may have before him, but not dismiss the
complaint.2
255. A c q u i t t a l or conviction.—(1) If the Magistrate, upon
taking the evidence referred to in Section 254 and such further
evidence, if any, as he may, of his own motion, cause to be
produced, finds the accused not guilty, he shall record an order
of acquittal.
(2) Where the Magistrate does not proceed in accordance
with the provisions of Section 325 or Section 360, he shall, if he
finds the accused guilty, pass sentence upon him according to
law.
(3) A Magistrate may, under Section 252 or Section 255,
convict the accused of any offence triable under this Chapter,
which form the facts admitted or proved he appears to have
committed, whatever may be the nature of the complaint or
summons, if the Magistrate is satisfied that the accused would
not be prejudiced thereby.
Synopsis

1. Legislative history, 2813

2. General observations, 2814
3. Acquittal, 2814
(i) Acquittal without examining prosecution witnesses illegal, 2814
(a) 'Taking evidence' when not complied with, 2815
(b) Court's duty to secure attendance of witnesses, 2815
(c) Evidence taken but complainant and his counsel absent on date of
argument, 2815
(ii) Non-examination of investigating officer—If ground for acquittal, 2816
(iii) Acquittal under s. 255, no bar to a warrant case, 2816
(iv) Discharge when accused not found guilty—Invalid, 2816
(v) Revision by High Court, 2816
4. Magistrate bound to pass sentence—[Sub-section (2)], 2817
5. Conviction for any other offence /Sub-section (3)], 2817
(i) Sub-section applies even in the absence of complaint, 2817
(ii) Sub-section must be read subject to s. 296, 2817
(iii) Conviction if to be for offence triable under Chapter XX as
summons c a s e , 2817
(iv) Trial de novo unnecessary, 2818

1. Legislative history.—Sub-sections (1) and (2) of s. 255

correspond to s. 245 of the old Code and sub-s. (3) of s. 255 of the
Code corresponds to s. 246 of the old Code and from sub-s. (1) of s.
245 of the old Code, the words "and (if he thinks fit) examining the
accused" have been omitted in sub-s. (1) of s. 255 and in sub-s. (3) of
s. 255, the words "if the Magistrate is satisfied that the accused would
not be prejudiced thereby" have been added.

1. 7 PR (Cr) 1898.
2. 5 Mad 160 : 2 Weir 305.
2814 Ch. XX— Trial of summons-cases by Magistrates [S. 255

2. General observations.—In a trial of summons case, the

Magistrate acts under s. 255 after taking evidence under s. 254 and
then announces the accused guilty or acquits him. If the prosecution
evidence itself is unreliable and cannot warrant by itself conviction of
the accused, the accused may not open his mouth and produce
evidence in his defence. The accused may be acquitted.1 When the
accused denies the commission of the offence under s. 251 and no
evidence is produced, it becomes unnecessary to examine the accused
under s. 313 and the accused cannot be convicted on the basis of the
statement taken under s. 313.2.
3. Acquittal
(i) Acquittal without examining prosecution witnesses
illegal.—JIn a summons case, it is the duty of the Magistrate to
proceed under this section.4 The acquittal of an accused person
without examining the complainant and his witnesses is illegal.5
Under s. 255, an order of acquittal cannot be recorded unless the
Magistrate has taken evidence.6 Acquittal under s. 255 is not correct
in a case in which no evidence has been recorded but acquittal order
on denial of offence by accused and presence of suspicious
circumstances is proper.7 The direction, contained in s. 254 regarding
hearing of the complainant and taking evidence is mandatory and
without complying with that direction, a Magistrate has no
jurisdiction to deal with the case under s. 255. An order passed in
clear violation of ss. 254 and 255 is clearly illegal.8 Directions under s.
254 and 255, are mandatory. Acquittal on perusal of police papers
without taking evidence is illegal.9 Where on the date fixed for hearing
prosecution evidence, the complainant was present but none of his
witnesses was present, and the Magistrate on the request of the
accused after perusing the police papers passed an order of acquittal
under s. 255, the order is bad in law and must be set aside.10
However, if after several directions the prosecution fails to produce
witnesses and even an application is not made to secure the
attendance of the witnesses, the order of acquittal is legal." When the
court has issued summons to the witnesses and witnesses were
present on the date fixed, but the court adjourned the case for
another date on which witnesses were not present, and the
prosecution sought the help of the court for securing the presence of
the witnesses, the court cannot refuse the prayer and acquit the

1. Raj Ram Threhan v. Principal Sudarshan Singh, 1981 Cr LJ 1469 (P&H).

2. Kishore Chandra Bhanushankar v. Bhavanagar Municipality, 1969 Cr LJ 1248 (Guj).
3. See also s. 254, supra.
4. 24 Cal 429 (431) : 1 CWN 414.
5. Rat 539 ; 1931 MWN 1950 ; 20 Mad 388.
6. 51 Cr LJ 434 : AIR 1950 Lah 40 ; Kallappa Appanna Bebade v. Datta Raya Ramchandra,
1997 Cr LJ 1190 (Bom).
7. (1964) 2 MLJ 475 : (1964) MLJ (Cr) 643.
8. ILR (1954) TC 77 : AIR 1954 TC 439.
9. (1962) MPLJ 195 : 162 (1) Cr LJ 817.
10. 61 Cal WN 757.
11. Santhamma R. Amma v. Kunju Pillai, 1981 Cr LJ 247 (Ker) : 1980 Ker LT 393 : 1980
Mad LJ (Cri) 448.
S. 255] Acquittal or conviction 2815
accused.' But if the prosecution is not taking proper steps for the
attendance of the witnesses, the court is not bound to fix another date
and can record an order of acquittal under s. 255.2
(a) 'Taking evidence' when not complied with.—On a plain reading
of s. 255, it is clear that the Magistrate has to take evidence as
required under s. 254, and only then he can pass the order of
acquittal. T a k i n g evidence" is not complied with by only looking into
police papers of the case and acquitting the accused. Police papers
are not the part of record of the case and what they contain is no
evidence.3 Any acquittal without taking evidence referred to in s. 254
cannot be justified.4
(b) Court's duty to secure attendance of witnesses.—On the plea of
not guilty, it is the duty of the Magistrate to hear the prosecution and
take evidence produced in support of the prosecution. However, if the
prosecution in a summons case does not produce evidence in spite of
giving several opportunities, the court has no option but to acquit the
accused under s. 255,6 but it is the duty of the court to secure the
attendance of witnesses and of the Public Prosecutor to take help of
the court in the matter and on the failure, the acquittal of the accused
is illegal.7 If witnesses are not produced, s. 255 is not attracted and
the court may act under s. 256 and stop the proceeding without
giving any judgment. For acquittal under s. 255, examination of
witnesses is necessary.8 But where the Magistrate hears the
complainant and also takes all such evidence as is produced by the
complainant in support of the prosecution and acquits the accused
after thus strictly complying with s. 254 (1), the acquittal cannot be
interfered with in appeal. The fact that he has not taken action under
s. 254 (2) is justified as such an action is within his competence.9
Once the court has issued summons to the witnesses, the court
cannot refuse taking steps for securing the attendance of the
witnesses upon whom the process has been issued. Instead if the
court takes it as prosecution evidence closed and acquits the accused,
the order is unsustainable.10
(c) Evidence taken but complainant and his counsel absent on date
of argument.—When the evidence has been taken and on the date of
argument, the complainant and his counsel are absent, accused
should not be acquitted. The Magistrate should peruse the evidence
and decide the case according to law.''

1. State of Tripura v. Niranjan Deb Barma, 1973 Cr LJ 108 (Tripura).

2. State of M.P. v. Kalu Thamar, 1972 Cr LJ 1639 (MP).
3. State of Gujarat v. Thakur Bhai Sukha Bhai, 1968 Cr LJ 59 (Guj).
4. State of Gujarat v. Lalit Mohan, 1990 Cr LJ 2341 (Guj).
5. S. and R. of Legal Affairs, West Bengal v. Iswar Chand Jana, 1971 Cr LJ 163 (Cal).
6. State v. Virappan, AIR 1980 Mad 260.
7. Shiv Charan Yadav v. State of Bihar, 1989 Cr LJ 1675 (Pat) : 1989 BLJ 563.
8. E. Bhosanan v. Polla Malliah, 1974 Cr LJ 157 (AP).
9. 1959 Ker LT 505.
10. State of Karnataka v. Devaiah, 1980 Cr LJ 40 (Kant) : (1979) Kant LJ 355 : 1979 Mad LJ
(Cri) 703 : ILR (1979) 1 Kant 1377.
11. State v. Jagatram Sahu, 1973 Cr LJ 295 (Orissa).
2816 Ch. XX— Trial of summons-cases by Magistrates [S. 255

(ii) Non-examination of Investigating officer—If ground for

acquittal.—Even where the investigating officer is not examined, it is
the clear duty of the Magistrate under s. 255 to consider the merits of
the case before proceeding to acquit the accused. Of course, the non-
examination of the investigating officer is a circumstance which may
be taken into consideration by the court, but that does not per se
furnish a ground for acquittal.1
(iii) Acquittal under s. 2S5, no bar to a warrant case.—An
acquittal under this section does not affect an offence triable only as a
warrant case.2
(iv) Discharge when accused not found guilty—Invalid.—A
Magistrate, who does not find the accused guilty, must record an
order of acquittal. No order of discharge can be passed under this
section.3 If a Magistrate trying a summons case, whatever procedure
he adopts, finds no case made out against the accused, and lets him
go unconditionally, he acquits him, though he styles his order as an
order of discharge and takes on to it the number of some section of
the Code which deals with discharge. The accused is non the less, in
law, acquitted, for the Code contemplates no other order in summons
cases.4
The reason for the above view is that the proceeding in a summons
case can end either in conviction or acquittal of the accused and not
the discharge of the accused. An order of discharge in such cases will
amount to an order of acquittal.5
Where a Magistrate has no jurisdiction to try a summons case, the
trial is void and an order of conviction or acquittal is also void
because there is no trial at all and the proceeding must terminate
with an order of discharge of the accused. Where a trial of summons
case is void for want of sanction, then also the conviction or acquittal
will be void and proceeding must terminate in an order of discharge.
But when trial of a summons case is valid, it ends either in conviction
or acquittal. If the Magistrate in his order uses the word "discharge",
it will be regarded as "acquittal".6 An order of discharge cannot be
passed on application of the accused under s. 255 (1) without
recording evidence.7

(v) Revision by High Court.—Where the circumstances warrant,

the High Court can interfere in revision with an acquittal under s.
255.

1. I960 Ker LT421 : 1960 Cr LJ 1469 (1) : AIR 1960 Ker 358.
2. 1886 AWN 260.
3. 19 PR (Cr) 1900.
4. 6 IC 385 : 11 Cr LJ 350, followed in 1958 Jab LJ 261. See also AIR 1958 Mad 197 :
1957 MLJ (Cr) 863 (Court can pass an order of dismissal under s. 203 or an acquittal
under s. 255).
5. Municipal Committee, Amritsar v. Shri Labhu Ram, 1970 Cr LJ 553 (P&H) ; Public
Prosecutor v. Hindustan Motors Ltd., 1970 Cr LJ 659 (AP).
6. Nagar Palika Officer Bhander v. Rajendra Singh, 1971 Cr LJ 381 (MP).
7. Kumar v. Perumal, 1997 Cr LJ 907 (Mad) ; Kallappa Appanna Bebade v. Dattatraya Ram
Chandra Shegal, 1997 Cr LJ 1190 (Bom).
8. 15 MLJ 255.
S. 255] Acquittal or conviction 2817
4. Magistrate bound to pass sentence [Sub-section (2)].—Where
a Magistrate convicts, he is bound to pass some sentence at least a
nominal one.1
Where it appears that but for plea-bargaining, the accused would
not have pleaded guilty and it is apparent that the sentence awarded
by the trial court is less than the minimum, the High Court cannot
enhance the sentence passed on the basis of plea-bargaining as it
would be violative of Art. 21 of the Constitution.2
5. Conviction for any other offence [Sub-section (3)].—This
sub-section enables the Magistrate to proceed in regard to any other
offence prima facie established by the evidence for the prosecution.3
Where an accused person has been summoned for criminal trespass,
it is open to the trying Magistrate under this sub-section to convict
him for assault and mischief.4 The sub-section does not, however,
mean that an accused in a summons case can be convicted of an
offence alleged to have been committed on a date to which no
reference has been made in the complaint or summons.5
(i) Sub-section applies even in the absence of complaint.—
Where the police sent the accused for trial on a charge of an offence
under s. 122 of the City of Bombay Police Act, but the Magistrate
altered the charge to one under s. 352, I.P.C. and convicted the
accused, it was held that s. 255 (3), applied even in the absence of a
formal complaint.6
(ii) Sub-section must be read subject to s. 296.—Where the
facts constituting the offence as set out in the order of the State
Government refer only to an offence punishable under the second
clause of s. 294A, I.P.C., the complaint for an offence punishable
under the first clause of the section is not authorised by the State
Government and in the absence of such sanction, the Magistrate is
barred by s. 196, from taking cognizance of that offence at the trial.
These considerations would apply even for invoking s. 255. The
conviction of the accused under the first clause of s. 294A, when the
sanction relates only to the second clause of the section, is, therefore,
without jurisdiction.7
(iii) Conviction if to be for offence triable under Chapter XX
as summons case.—Once a Magistrate has taken cognizance of a
summons case, he cannot convict the accused for anything other than
an offence triable as a summons case. Where he proceeds to try a
case as a summons case, but discovers during trial that the acts
constitute an offence triable as a warrant case, he cannot convert the

1. 4 MHCR App. Lxvi : 2 Weir 306. See also 2 Bom LR 611 ; State of Karnataka v.
Nagaraja, 1997 Cr LJ 696 (Kar).
2. State v. Uttam Bhaiku Prajapati, 1992 Cr LJ 626 (Guj).
3. 22 WR 40 (Cr) : 14 Bom LR 135.
4. 36 Cal 869.
5. 62 IC 575 : 22 Cr LJ 559.
6. AIR 1926 Bom 255 : 28 Bom LR 291.
7. 1956 Andh WR 503 : 1957 Cr LJ 1389 : AIR 1957 AP 987.
2818 Ch. XX— Trial of summons-cases by Magistrates [S. 256

case before him into a warrant case and frame a charge for both
offences. Such a course is precluded by the terms of s. 255 (3).'
(iv) Trial de novo unnecessary.— The Magistrate acting under
this sub-section is not bound to re-open the trial and follow the
procedure of ss. 252 and 254. Such a view would necessitate a re-
hearing of all the evidence in the same trial and is clearly opposed to
the manifest intention of the Legislature.2
256. Nan-appearance or death of complainant.—(1) If the
s u m m o n s h a s b e e n i s s u e d o n complaint, a n d o n the day
a p p o i n t e d for the appearance of the accused, or a n y day
s u b s e q u e n t thereto to w h i c h the h e a r i n g may be adjourned, the
complainant does not appear, the Magistrate shall,
n o t w i t h s t a n d i n g a n y t h i n g h e r e i n before contained, a c q u i t the
accused, u n l e s s for some r e a s o n he t h i n k s it proper to a d j o u r n
the h e a r i n g of the case to some other day :
Promded that where the c o m p l a i n a n t is represented by a
pleader or by the officer c o n d u c t i n g the p r o s e c u t i o n or where
the Magistrate is of o p i n i o n that the p e r s o n a l attendance of the
c o m p l a i n a n t is not necessary, the Magistrate m a y dispense w i t h
h i s attendance a n d proceed w i t h the case.
(2) T h e provisions of sub-section (1) shall, so far as m a y be,
apply also to cases where the non-appearance of the
c o m p l a i n a n t is d u e to h i s death.
Synopsis

1. Legislative history, 2820

2. Object of provision, 2820
3. Scope and applicability of provision, 2820
(i) Ingredients of provision, 2820
(ii) Conditions for applicability, 2821
(iii) Wide discretion of Magistrate, 2821
(iv) Section inapplicable to enquiries under Press (Objectionable Matter) Act,
1951, 2822
(v) Section inapplicable to warrant cases, 2822
(vi) Section inapplicable to joint trial of summons and warrant cases, 2822
(vii) Section, if applicable to trial of summons case under warrant case
procedure, 2822
4. Issuance of summons on complaint, 2823
(i) Case not instituted on complaint—Provision not attracted, 2823
(ii) Police report not complaint, 2823

King, J., in 59 Mad 442 : AIR 1936 Mad 341 : 70 MLJ 430. This view was dissented from
by Burn, J., in ILR (1938) Mad 814 : AIR 1938 Mad 815, who held that if a Magistrate
began a trial as a summons case and then found that an offence triable only under
warrant case procedure had been committed, he was bound to apply warrant case
procedure thenceforward and he was not in any way disqualified from proceedings with
the trial. The question came up later before King, J., in ILR (1938) Mad 343 : AIR 1937
Mad 944 and he reconsidered the opinion expressed by him 59 Mad 442 and stated that
the position had been set out in that case with some lack of precision. The decision in
ILR (1938) Mad 814 was followed in ILR (1947) Mad 502 : AIR 1947 Mad 120 : (1946) 2
MLJ 279.
2. 36 Cal 869 (872).
S. 256] Non-appearance or death of complainant 2819
(iii) Police charge-sheet in non-cognizable offence enquired into without
Magistrate's order, 2823
(iv) Not applicable to s. 107proceeding, 2824
5. "Complainant", 2824
(i) Complaint by incorporeal person, 2825
6. Non-appearance of complainant on day of adjourned hearing, 2825
(i) Adjournment for argument, 2825
(ii) Provision not applicable when hearing concluded, 2826
(iii) Absence on previous date—No ground for acquittal, 2826
7. Duty of complainant to find out date of hearing—Exception, 2826
8. "Complainant does not appear"—What connotes?, 2827
(i) Complainant's knowledge of date of hearing necessary, 2827
(ii) Absence only during working hours, 2827
(iii) Appearance of complainant's vakil not sufficient, 2828
(iv) Court, if bound to wait for complainant, 2828
(v) Absence due to death of complainant, 2830
(a) Substitution, 2830
(b) Magistrate's discretion, 2831
(c) Death of complainant in appeal, 2831
(vi) Panchayat succeeding municipality, 2831
9. Accused need not be present, 2831
10. Mere absence of complainant will not operate as acquittal, 2832
11. Agent filing complaint and subsequently leaving principal's services—Latter, if
could be substituted as complainant, 2832
12. Courses open to Magistrate under section, 2833
13. "Magistrate shall acquit the accused, unless for some reason he thinks proper
to adjourn hearing of case", 2833
(i) Discretion to be exercised with great care and caution, 2833
(ii) Presence of complainant not necessary, 2835
(iii) No acquittal of accused on adjourned date of hearing, 2836
(iv) Magistrate to see whether case should not be adjourned, 2836
(v) Magistrate to apply mind to dispense with personal attendance of
complainant in proper cases, 2837
14. Acquittal when proper, 2839
(i) Complaint instituted on police report, 2840
(ii) Absence of public servant complainant, 2840
15. Acquittal where improper, 2840
(i) Complainant appearing after few minutes, 2841
(ii) Complainant public servant and accused's application for time
allowed, 2841
(iii) Short absence of complainant for call of nature, 2841
(iv) Order not passed after application of judicial mind, 2841
(v) Absence on date of argument, 2842
(vi) Complainant's presence when not necessary?, 2842
(vii) Magistrate busy on earlier occasions, 2842
(viii) Absence of court, 2842
(ix) Case called on only for fixing new date, 2843
(x) No laches, 2843
(xi) Complainant having done what is necessary to establish case, 2843
(xii) Date meant for securing defence ivitnesses, 2843
(xiii) Other illustrative cases, 2844
16. Acquittal cannot be cancelled by acquitting court, 2844
17. Effect of order under section, 2845
(i) Where operates as bar, 2845
(ii) Where does not operate as bar, 2846
18. Proceedings taken in absence of complainant without dispensing with his
personal attendance—Not illegal, 2847
19. Power of Magistrate to recall dismissal order, 2847
20. Appeal and revision, 2848
2820 Ch. XX— Trial of summons-cases by Magistrates [S. 256

(i) Appeal, 2848

(ii) Revision, 2848
(iii) Review, 2849

1. Legislative history.—Section 256 (1) corresponds to s. 247 of

the old Code, but in the proviso to old s. 247 after the word "where",
the words "the complainant is represented by a pleader or by the
officer conducting the prosecution or where" have been added.
Sub-section (2) of s. 256 of the Code is new.
2. Object of provision.—The principle underlying the section
appears to be that from the first day on which the case is fixed for
appearance of the accused and at all subsequent adjourned hearings
of the case during which the court has to take some step or other in
the progress of the trial, the presence of the complainant before the
court is insisted on, and if he absents himself on any such hearing,
his complaint is liable to be dismissed and the accused acquitted.1
The purpose of s. 256 is to afford some deterrence against dilatory
tactics on the part of complainant who set the law in motion through
his complaint. The object of the section is to prevent the complainant
from being dilutory in the prosecution of the case and consequent
harassment to accused persons.3 Section 256 (1) should not be used
as a short-cut for the trial court to dismiss cases by snap judgments.
The power is there to dismiss the complaint and acquit the accused in
a summons case on complaint on the absence of the complainant, but
the power must be exercised judicially, and it must be seen and
considered having regard to the circumstance of a given case where
the presence of the complainant was essential on that date to proceed
with the case or could be dispensed with.4 Though, therefore, the
object of the provision is "to prevent the complainant being dilutory in
the prosecution of his case, it nowhere lays down that in all cases,
where the complainant is found to be absent on the date of hearing of
the case, the case has to be dismissed. On the other hand, it vests
discretion in the Magistrate to adjourn the hearing of the case to some
other date, or to proceed with the case even if the complainant is not
present at the trial of a summons case.5
3. Scope and applicability of provision
(i) Ingredients of provision.—The ingredients of s. 256 (1) are as
follows :
(a) summons must have been issued on complaint,
(b) the Magistrate should be of opinion that for some reasons, it is
not proper to adjourn hearing of the case to some other date,
and
(c) the date on which the order under s. 256 (1), can be passed is
the day appointed for appearance of the accused or any day

1. 1940 N U 399 : AIR 1940 Nag 357.

2. Associated Cement Company Ltd. v. Keshvanand, 1998 (1) Crimes 88 (SC).
3. 1961 Ker LT 797 : (1963) MLJ (Cr) 85 ; 49 Mad 883 : AIR 1926 Mad 1009.
4. Johrilal v. Ramji Lai, 1964 Raj LW 418 (Raj).
5. State v. Gurdial Singh, 1961 (1) Cr LJ 305 (Punj).
S. 256] Non-appearance or death of complainant 2821
subsequent thereto to which the hearing of the case has been
adjourned.
The proviso of the section will be applicable under the following
circumstances :
(a) the complainant is represented by a pleader, or
(b) the complainant is represented by the officer conducting the
prosecution, or
(c) the Magistrate is of opinion that the personal attendance of the
complainant is not necessary, and then he may in his
discretion dispense with the attendance of the complainant
and proceed with the case.
The above ingredients make it clear that while passing an order
under s. 256 (1), the court has to bear in mind the ingredients of the
proviso also. The main provision applies when the case is posted to a
date appointed for the appearance of the accused or any date
subsequent thereto to which the case may be adjourned for hearing.
Even then the Magistrate has, on exercising his discretion, to record
that there is no good reason for which it will be proper to adjourn the
hearing of the case to some other day. If the date is fixed for recording
the plea of the accused though recording the plea of the accused may
be considered as part of the process of the hearing of the case, a
Magistrate is at liberty to split up the process of hearing as recording
of plea and recording of evidence. If on the date fixed for recording the
plea of the accused, the complainant is absent, the Magistrate cannot
pass an order of acquittal by holding that there is no good reason for
adjourning the case.
(ii) Conditions for applicability.—For the application of the
section, it is necessary that (1) summons has been issued on
complaint and (2) the complainant has not appeared.2 The section
applies to summons cases only on complain, and to decide whether a
particular case is a summons case or a warrant case, the fact that the
warrant is issued at first place or summons is not material. The main
point to be seen is as to whether the charge alleged against the
accused is a summons case or warrant case.3
(iii) Wide discretion of Magistrate.—Under this section, the
Magistrate has a wide discretionary power to examine the facts and
circumstances of the case and to take all possible facts into
consideration before passing the order of acquittal. The discretion
vested in the Magistrate being a judicial one, it has to be exercised
cautiously on judicial consideration. As the order of acquittal passed
under this section will bar a fresh trial, such an order is of immense
significance and must show that the discretion has been properly
exercised.4

1. A. P. M. Committee, Raichur v. C. S. Tender Brothers, 1981 Cr LJ 463 (Kant).

2. Chillikkoodathil M. Augustin v. State of Kerala, 1985 Cr LJ 1897 (Ker).
3. Padam Nath v. Ahamad Dobi, 1970 Cr LJ 1700 (J&K).
4. Mir Samsul Haque v. Mir Mukhtar, 1987 Cr LJ 1455 (Ori) : (1986) 62 Cut LT 630 :
(1987) 1 Hindu LR97.
2822 Ch. XX— Trial of summons-cases by Magistrates [S. 256

(iv) Section inapplicable to enquiries under Press

(Objectionable Matter) Act, 1951'
(v) Section inapplicable to warrant cases.—Section 256 applies
only to summons cases. Where a complaint is under a section which
makes the complaint a warrant case, the correct section to apply is s.
249, so that, if the complaint is dismissed for default, the dismissal
operates as a discharge and a subsequent trial on a fresh complaint
without the revision of the order of discharge is not barred under s.
300.
(vi) Section inapplicable to joint trial of summons and
warrant cases.—Where the offences triable as summons cases and
those triable as warrant cases are tried jointly, all the offences attract
the procedure laid down for a warrant case. In cases to which s. 249
applies, the proper order would be one of discharge, even in respect of
the offence which is summons case and not of acquittal.3
(vii) Section, if applicable to trial of summons case under
warrant case procedure.—The fact that the court adopts the
warrant case procedure for the trial of a summons case cannot affect
the right of the accused to an acquittal under s. 256. It is also
immaterial if the order therein is described as an order of discharge; it
operates as an acquittal and the accused cannot be tried afresh on
the same facts.4 The accused was charged under s. 430, I.P.C., a
warrant case. The Magistrate tried the accused under the procedure
prescribed for the trial of warrant cases but eventually framed a
charge under s. 426, I.P.C., a summons case offence. The Magistrate,
however, proceeded with the trial under the warrant case procedure
re-calling the prosecution witnesses for examination and for further
cross-examination and then eventually acquitted the accused under s.
256, on the ground that the complainant did not appear on the
adjourned date of hearing. It was held that the acquittal was legal and
proper. Section 256, lays down a general principle that a person
charged with a summons case offence is entitled to an acquittal if the
complainant is absent and there is no reason why this right should be
denied to him simply because the Magistrate has adopted a particular
procedure in the trial of the case.5 But where two charges, one a
summons case and the other a warrant case, are joined in one trial
and the complainant is absent at the adjourned hearing, the
Magistrate ought to make an order of discharge under s. 249, and not
one of acquittal under s. 256.6 Order of discharge does not amount to
acquittal in respect of offence triable as summons case,7 and accused
cannot claim benefit of s. 256.8 Proper order would be one of

1. See AIR 1954 Ajmer 19 : 1954 Cr LJ 549 ; AIR 1954 Ajmer 41 : 1954 Cr LJ 1022.
2. 152 IC 249 :AIR 1934 All 340.
3. AIR 1958 Tripura 22 : 1958 Cr LJ 697.
4. 1933 MWN 1278.
5. 44 MLJ 119 : AIR 1923 Mad 439, followed in 1958 Cr LJ 1096 : AIR 1958 Punj 317.
(held, however, on facts that order of acquittal was not justified) : 1963 Raj LW 233.
6. 11 Cal 91 (92) ; 42 Bom LR 902 : AIR 1940 Bom 413.
7. 41 Mad 727.
8. 1961 Raj LW 14 : (1961) 2 C r L J 404.
S. 256] Non-appearance or death of complainant 2823
discharge even in respect of offence which is a summons case and not
of acquittal.1 Where in such a case owing to the absence of the
complainant on the day of hearing, the Magistrate dismisses the
complaint and directs the accused to be released, the order cannot be
regarded as one of acquittal under s. 256, but can only be treated as
one of discharge under s. 249.2
4. Issuance of summons on complaint.—In order to attract the
provisions of s. 256 (1), it is necessary not only that a summons
should have been issued but it is further necessary that it should
have been issued on a complaint.3 The order of acquittal under the
section can be passed when the summons has been issued for the
appearance of the accused.4
Where there has been no proper issue of process, the provisions of
s. 256 (1) are not attracted.5 The day on which complaint is filed is not
the one on which the accused is to appear nor is an adjourned date
and absence of accused on that date does not attract provisions of
this section.6
(i) Case not instituted on complaint—Provision not
attracted.—The section is not applicable where the case is not
instituted on a complaint. Under s. 47 of the U.P. Act (II of 1916), it is
the Magistrate who takes cognizance of the offence upon information
received. So the case is not one instituted upon a complaint within
the meaning of the word "complaint" in s. 2 (d), and s. 256 has no
application. In spite of the non-appearance of the complainant, the
proceedings must continue.7
(ii) Police report not complaint.—A police report in respect of a
cognizable offence is not a complaint within s. 2 (d) and the section is
inapplicable to a case taken cognizance of by a Magistrate on such
report.8 Prosecution on charge-sheet by police—No prosecution
witnesses produced—Acquittal should be under s. 255, and not under
s. 256.9 It cannot be said that police can make a report only in a
cognizable case and that a police report made in a non-cognizable
case should only be treated as a complaint. A report made after
investigation under s. 155, will be a report covered by s. 173 and
would be a police report and not a private complaint to which the
provisions of s. 256 would not be attracted.10
(iii) Police charge-sheet in non-cognizable offence enquired
into without Magistrate's order.—But if a police officer investigates
into a non-cognizable offence [e.g., an offence under s. 12 of the
Madras Gaming Act) without the order of a Magistrate as required by

1. AIR 1958 Trip 22.

2. ILR (1948) All 7 : AIR 1948 All 135.
3. AIR 1958 MP 54.
4. Subhanna Hedge v. Dyavappa Gowda, 1980 Cr LJ 1405 (Kant) : (1980) 1 Kant LJ 384.
5. (1954) 2 MLJ 224 : AIR 1954 Mad 889 : AIR 1959 All 425 : 1959 Cr LJ 806.
6. Ugam Raj v. State, 1993 Cr LJ 2301 (Raj).
7. AIR 1924 All 528 : 26 Cr LJ 170.
8. AIR 1956 Ajmer 24.
9. 1959 Ker LR 1106 : 1959 Ker LT 1316 ; 1956 Cr LJ 1065 : AIR 1956 Bom 606 ; AIR
1961 Trip 12. (Section 256 and not s. 256, applies to cases charge-sheeted by police).
10 .1960 Raj LW 42 : 1960 Cr LJ 858 : AIR 1960 Raj 150.
2824 Ch. XX— Trial of summons-cases by Magistrates [S. 256

s. 155 (2), and files a charge-sheet, it is none the less to be treated as

a 'complaint' and not as a police report. To such a case, s. 256 is
applicable.1 Offence under ss. 8 and 9, Gaming Act,2 report of police
officer in respect of offence under ss. 8 and 9, Motor Vehicles Act,3 an
order of release passed under s. 258, would be erroneous, must be
deemed to be one under s. 256, which is applicable in a complaint
case.4 But a different view has been expressed in the following cases.
A report submitted by the Station House Officer in connection with an
offence under s. 160, I.P.C. (which is a non-cognizable offence) and
which is not covered by the provisions of s. 155, would fall within the
scope of s. 24, Police Act. Whether a report is submitted by a police
officer in the capacity of his being an officer of the police, such report
cannot be considered anything other than a police report, though it
may pertain to a non-cognizable offence. Such police reports cannot
be regarded as complaints within the meaning of s. 2 (d) and to a case
registered on such a police report, the provisions of s. 256 are not
attracted and it is not competent to a Magistrate to dismiss the case
and acquit the accused merely because the Prosecuting Officer makes
default in his appearance.5
A report by a competent Excise Officer under s. 60 of M. B. Excise
Act is a police report under s. 61 of that Act and since s. 256, is
applicable only to a complaint as defined in s. 2 (d), the order of
acquittal under s. 256, is not proper.6 A Sub-Inspector of Excise in
Bihar, though not a police officer in strict sense, but by legal fiction
under s. 78 (2) of the Excise Act he is a police officer and any report of
an offence made to the Magistrate after investigation will be treated as
a police report and not a complaint and s. 256, will not apply to that
case.7
(iv) Not applicable to s. 107 proceeding.—Section 256 does not
apply to a proceeding under s. 107 of the Code.8
5. "Complainant".—Case under Railways Act—Complaint by
Assistant Commercial Officer—He is the complainant and not the
whole Railway Administration.9
When more than one complaint is made of an offence arising out
of the same set of facts, the word "complainant" in the section should
be construed to include all persons who have made complaints. Notice
of hearing should be given to all of them and it is only when all the

1. (1958) 1 Andh WR 145 : AIR 1958 AP 392 : 1958 Cr LJ 737.

2. AIR 1962 Mad 403.
3. AIR 1957 TC 132.
4. 1961 ALJ 118 : AIR 1961 All 377. See 1964 Ker LT 535 : 1965 (1) Cr LJ 178 : AIR 1965
Ker 59.
5. 1961 Raj LW 498 : 1962 (1) Cr LJ 80 : AIR 1962 Raj 1. See also AIR 1963 MP 71 : 1963
(1) Cr LJ 197 : 1963 Raj LW 48. (On this point, see s. 190, supra).
6. 1958 MPLJ 376 : 1959 Cr LJ 46 : 1960 Jab LJ 1173 : 1958 MPC 300 : AIR 1959 MP 7 ;
1958 Cr LJ 189 : AIR 1958 MP 54 : 1958 MPLJ 65.
7. State v. Dasarath Munda, 1968 Cr LJ 1195 (Pat) ; State v. Newal Mahto, 1968 Cr LJ
1298 (Pat).
8. 31 CWN 388 : AIR 1927 Cal 343.
9. 1961 (2) C r L J 185 : AIR 1961 All 447.
S. 256] Non-appearance or death of complainant 2825
complainants are absent that the accused can be acquitted under the
section.1
The section makes no distinction between a public servant
complainant and an ordinary complainant in respect of his personal
attendance,2 e.g. in cases of complaint by Magistrate3 complaint by
Prohibition Officer4, or complaint by police officer.5 But where a report
after investigation has been made to the Magistrate by the Excise
Sub-Inspector for an offence under Excise Act, the report is not a
complaint and this section will not apply.6
In the case of a complaint by a public servant, the presence of the
Public Prosecutor in court cannot be deemed to be the presence of the
complainant.7
(i) Complaint by incorporeal person.—An incorporeal person, a
company or a corporation, can file a complaint. The scheme of the
Code makes it clear that complainant must be a corporeal person
capable of making physical presence in the court. It must necessarily
associate a person to represent it in court proceedings. The company
may appoint a person to represent it and may then change it with the
permission of the court. Absence of complainant would thus include
absence of the person representing the incorporeal complainant.
Provisions of Section 256 apply to complaints by incorporeal persons.8
In case a complaint is filed u/s 138 Negotiable Instruments Act by a
partner of the firm, the complaint will not abate with the death of
such complainant.9
6. Non-appearance of complainant on day of adjourned
hearing.—Where a Magistrate treats a complaint as one triable as
summons case and adjourns the case to a future day, he is at liberty
to dismiss the complaint under s. 256, if the complainant does not
appear on that day.10 The day to which the "hearing may be
adjourned" would necessarily mean that it must be a day on which
the case is to be heard." The word "hearing" in the section is not used
in the limited sense of an investigation of a controversy.12
(i) Adjournment for argument.—Where, in a summons case,
after the examination of the witnesses for the prosecution and the
defence, the Magistrate adjourned the case for argument for the

1. 1939 AMLJ 99.

2. 1960 ALJ 884 : AIR 1961 All 352 ; AIR 1954 Ajmer 31 (2).
3. AIR 1957 AP 977.
4. AIR 1958 AP 392.
5. 29 Cut LT 657.
6. State v. Dasrath Munda, 1968 Cr LJ 1195 (Pat) ; State v. Newal Mehta, 1968 Cr LJ 1298
(Pat).
7. 1960 ALJ 884 : AIR 1961 All 352, overruling AIR 1959 All 425 ; 26 Cut LT 658 : 1961 (2)
C r L J 518.
8. The Associated Cement [Link]. v. Keshavanand, JT 1997 (10) SC 165 : 1998 Cr LJ 856
(SC) : 1998 (1) Crimes 88 (SC) ; Ram Murti v. Anil Shashi Gore, 1978 Cr LJ 1177 (Del).
9. Dior International v. M/s Raghuvansh Enterprises, 1999 (2) Crimes 392 (Del).
10. 22 WR Cr 40 (41).
11. 1960 ALJ 312 : 1960 Cr LJ 1058 : AIR 1960 All 507. (Information given by
complainant's counsel that case had been stayed by Sessions Judge—Magistrate acts
unreasonably in dismissing complaint).
12. 1940 N U 399 : AIR 1940 Nag 357.
2826 Ch. XX— Trial of summons-cases by Magistrates [S. 256

purpose of the documentary and oral evidence being explained to him,

and on that adjourned date, the complainant did not appear and the
accused was acquitted under s. 256, it was held that although the Cr.
P.C. made no provision for argument in a case governed by Chapter
XX of the Code, the hearing of the case did not end with the
examination of the witnesses for the parties and s. 256 governed the
case.1
(ii) Provision not applicable when hearing concluded.—But
this section does not apply when the hearing is concluded and the
case is adjourned only for judgment, without the attendance of the
complainant having been specially directed; and an order of acquittal
on the ground of the absence of the complainant on the date of
judgment is, therefore, illegal.2 Case fixed for orders on objection of
accused regarding jurisdiction—Complainant absent—Complaint
cannot be dismissed for non-appearance of complainant.3
(iii) Absence on previous date—No ground for acquittal.—The
power to dismiss a complaint for default of the appearance of the
complainant may be exercised at any stage, e.g., a Magistrate can
acquit the accused at a further hearing, if the complainant fails to
appear, though the Magistrate might have, on the previous occasion,
not exercised his power of dismissal but adjourned the case.4 But the
Magistrate cannot acquit the accused on the adjourned date, when
trie complainant is present, on the ground that he was absent on the
previous date. Such an order is not proper and will be set aside.5
7. Duty of complainant to find out date of hearing—
Exception.—The Magistrate is not bound to send a reply to the letter
written by the complainant. It is the duty of the complainant to make
inquiries in the court and find out the date of hearing of the case.6
Unlike in the case of a private complaint, the presence of a public
servant before the Magistrate to lodge a complaint is not insisted
upon by law. If a complaint by a public servant forwarded to the
Magistrate, either by post or any other method of communication, can
be legally taken cognizance of, then necessarily it is implied that the
Magistrate should inform the public servant of the date fixed for
commencement of the trial, and this the Magistrate should do, not by
any private correspondence, but by giving a direction in the order-
sheet. It is the duty of the Magistrate to inform the complainant about
the date when the hearing is to commence.7 Where the Magistrate,
after taking cognizance of the case without the presence of the public
servant, was of opinion that the personal attendance of the
complainant was necessary for the purpose of giving evidence, the

1. 18 CWN 584 : 22 IC 739 (22 WR Cr40, relying MR 1955 TC 31 : 1955 Cr LJ 321.

2. 46 Cal 867 : 23 CWN 959. See also 19 NLR 48 : 71 IC 669 : 1933 MWN 1271 (1) ; 39
PLR 838 ; 1961 MPLJ (Notes) 256.
3. 160 Nag LJ (Notes) 16.
4. 2 Weir 308.
5. Mahendra Kumar Barik v. Dwijabar Barik, 1988 Cr LJ 1558 (Ori) : (1988) 65 Cut LT 324
: (1988) 1 Crimes 907 ; Lingraj Padhan v. Guna Sahu, 1973 Cut LR 534 (Ori).
6. 1959 Mad LJ (Cr) 278 : 1959 Ker LT 449 : AIR 1959 Ker 350.
7. 26 Cut LT 658: 1961 (2) C r L J 518.
 S. 256] Non-appearance or death of complainant 2827
complainant had to be summoned like any other witness and
' informed about the date of hearing.1
8. "Complainant does not appear" what connotes?—Where a
Magistrate summoned a person to appear on a certain day at 11 a.m.
and the party appeared but the Magistrate did not sit till 2 p.m. and
the party did not wait, it was held that it could not be said that the
party had failed to appear.2
The complainant present on date of hearing but his witnesses
absent—Section 256 does not apply and accused cannot be
acquitted.3
Where on the date of hearing the accused were absent while the
complainant was present with his witnesses and the court issued
non-bailable warrants against them and fixed a date for their
appearance, but the warrants were later recalled and the same date
fixed for hearing, on the accused not appearing on such a date no
order could be passed under this provision as the complainant did not
know about the date having been fixed for hearing.4
(i) Complainant's knowledge of date of hearing necessary.—
The words 'if the complainant does not appear' in s. 256, should be
construed as signifying 'if the complainant, having knowledge or
information of the date, fails to appear on that date'.5 Before a
Magistrate takes action under s. 256 and acquits an accused, he
should be satisfied that the date of hearing was known to the
complainant. In most cases this knowledge can be assumed, the
complainant having been present on the previous hearing, but in
cases where this is not so (for instance, when the case is adjourned
sine die) and notice has to be issued, the Magistrate must make sure
that the notice has been served or that the date fixed has come to the
complainant's knowledge in some other way.6 Where the complaint
was filed by a public servant and did not have information about the
date of hearing, dismissal of complaint and acquittal of accused on
his absence is wrong.7
(ii) Absence only during working hours.—The words "does not
appear" in s. 256, have only one meaning in the context, that is, the
failure to appear must have been during the working hours of the
court (and not during the lunch interval).8 When the case is called
out, but the complainant is not present, nor any reason is shown to
the court for the absence of the complainant, naturally the court will
presume that the complainant is absent, because he is not willing to
go on with the case and an order of acquittal may be passed.9

1. 29 Cut LT 657.
2. AIR 1927 Mad 393 : 28 Cr LJ 208 (2).
3. 1962 (1) Cr LJ 677 (Trip).
4. Rabindra Behera v. Sridhar Amantray, 1995 (4) Crimes 66 (Ori) : 1996 Cr LJ 832 (Ori).
5. AIR 1928 Mad 1158, relied on.
6. 1960 All LJ 880 : 1961 (2) Cr LJ 185 : AIR 1961 All 447.
7. 29 Cut LT 657.
8. AIR 1960 AP 193.
9. Provident Fund Inspector, Mangalore v. A.J. Koelha, 1974 Cr LJ 68 (Mys).
Cr. P.C. 180
2828 Ch. XX— Trial of summons-cases by Magistrates [S. 256

(iii) Appearance of complainant's vakil not sufficient.—

Appearance of the complainant's vakil is not "appearance" of the
complainant.' The presence of the complainant's vakil alone is not
sufficient compliance with the requirements of s. 256. A complainant
cannot be represented by a pleader in order to take away the
jurisdiction of the Magistrate to proceed under s. 256.2
(iv) Court, if bound to wait for complainant.—-The court is not
bound to wait for the complainant till the court closes for the day.3
The absence of the complainant at the time when the case is taken up
for hearing is sufficient to justify the Magistrate in dealing with the
case under s. 256, and acquit the accused, and the court is not
bound to wait till the close of the day to see, before proceeding under
s. 256, whether the complainant appears. There is nothing in the
section which would justify the construction that the words "upon any
day appointed for the appearance of the accused," etc., mean any time
before the close of the working day.4 Where the case was disposed of
at 11.20 a.m., when the advocate and complainant could not go to the
court in time on account of some trouble to the car of the advocate, it
was held that it was, under the circumstances, an adequate reason
for being late. Dismissing a complaint at the early hours of the court
when there was other work before the court was not justified under
the circumstances.5 The Magistrate exercising discretion may wait for
a while for the appearance of the complainant if any representation is
made by his counsel. The Magistrate may even adjourn the case for
some other day if he is satisfied with the reasons given by the pleader
of the complainant as to circumstances that disabled the complainant
from attending the court on the date of hearing. But where no such
representation has been made, the Magistrate is justified in acquitting
the accused. The court is not to wait up to close of the court.6
An order passed at 11 or 11.30 a.m. is hasty disposal at such
early hours when the day's work begins and it amounts to misuse of
the discretion vested in the Magistrate. The court should wait for
reasonable time for the appearance of the complainant before issuing
the order of acquittal.7 If the complainant is a little late, the court
should not acquit the accused under this section, but at the same
time, it is not expected from the court to wait for the complainant till
the end of the court hours. May be that when the case is called for the
first time, the complainant may be away from the court for a short
time for personal reasons thinking that the case may not be taken up
immediately, and if the accused is acquitted in the meantime, it may

1. 2 Weir 309.
2. 49 Mad 883 : 51 MLJ 730. (Appearance of complainant contemplated under this section
is personal appearance) : AIR 1953 MB 254.
3. 7 Mad 356 (357) : 2 Weir 309.
4. 49 Mad 883 : 51 MLJ 730 : AIR 1934 Bom 130. But see ILR (1953) Mys 329 : AIR 1953
Mys 146. (Court should not hastily dispose of case under s. 256 at early stage when
day's work begins) : AIR 1955 Hyd 192.
5. Ibid.
6. Ram Pal Singh v. State of U.P., 1976 Cr LJ 288 (All) ; K. Papi Reddy v. P. Lakshmi
Narayan, 1968 Cr LJ 1644 (AP).
7. Shyam Sunder Sahu v. Saroj Kumar Ghose, 1968 Cr LJ 846 (Ori).
S. 256] Non-appearance or death of complainant 2829
result in injustice in some cases. Section 256 gives discretion in the
matter by using the words "unless for some reasons he thinks it
proper to adjourn the hearing of the case to some other day".1
A single Judge of the Allahabad High Court did not agree with the
view of the Madras High Court as above2 and held that the words
"upon the day" in s. 256 should not be interpreted to mean the
moment in the day when the case was called and that the Magistrate
was bound to wait until the close of the day and pass the order of
acquittal at the end of the day.3 Another Judge of the same High
Court did not think it proper to go to that length. It was observed in
that case that "without saying that the court in every case must wait
for the whole day before passing an order of dismissal, it must be said
that the court will also not be justified in dismissing the complaint
immediately upon calling the case and the complainant not
appearing. A reasonable view has to be taken in every case and it
depends upon the circumstances of each case whether the Magistrate
has acted reasonably in passing the order or not.4
In a case before the High Court of Andhra Pradesh, the
complainant had appeared before the court on the day of hearing but
was informed by the clerk of the court that the Magistrate had gone
on camping and he was not likely to come back for some time. The
complainant accordingly went to have his midday meal at 1 O'clock
after intimating the clerk of the court that he would be returning by
half past one. The Magistrate returned from camp, attended the court
during interval, called the case and acquitted the accused. In these
circumstances, it was observed "that in all cases where the
complainant appears in the court on the day of hearing", s. 256 does
not apply at all. It is only when the complainant does not appear at all
during court hours, on the day of hearing, that the Magistrate could
take upon himself the responsibility of throwing out a case and
acquitting the accused. The section does not justify the acquittal of an
accused merely because the complainant happens to be absent when
the case is called. Such absence may, in most cases, be due to
justifiable cause. Such temporary absence from court sifter the
complainant had appeared, gives no jurisdiction for the Magistrate to
take action under s. 256. The words "does not appear" have only one
meaning in the context, that is the failure to appear must have been
during the working hours of the court".5

1. Santhosh v. State of Kerala, 1985 Cr LJ 756 (Ker) : (1985) 2 Crimes 58.

2. See discussion under footnotes 4 and 5 above.
3. 1960 ALJ 799 : AIR 1960 All 296 : 1960 Cr LJ 552.
4. 1960 ALJ 312 : 1960 Cr LJ 1058 : AIR 1960 All 5d7, followed in 1963 Raj LW 546 :
1963 (5) Cr LJ 719 : 1962 Ker LT 781 : 1963 (1) Cr LJ 667. (Though it cannot be said
that the Magistrate should wait to the end of the working day to pass an order of
acquittal under s. 256, yet acquittal should not follow as a matter of mere routine if at
the moment the case is called the complainant is not present in court. It is neither
possible nor desirable to specify any particular length of time as the period the
Magistrate should wait before acquitting the accused. The discretion has to be used in a
judicial manner) : 29 Cut LT 39 : 1963 (1) Cr LJ 602 : AIR 1963 Ori 90.
5. AIR 1960 AP 193 : 1960 Cr LJ 457.
2830 Ch. XX— Trial of summons-cases by Magistrates [S. 256

It appears that the view of the High Court of Andhra Pradesh is

quite plausible and convincing.
(v) Absence due to death of complainant.—When the
complainant dies, there is no question of appearing on any future
date and the question of adjournment of the case for any future date,
in such a case, does not arise.1 Only in a warrant case or sessions
case, the prosecution does not end with the death of the
complainant.2
In a case under s. 352, I.P.C., after the death of the complainant
his nephew applied for substitution of his name in place of the
deceased. The Magistrate directed the case to be proceeded with, the
ground assigned being that the accused has been guilty of contempt
of the process of the court. It was held that it was not a sufficient
ground and the Magistrate should have recorded an order of acquittal
under s. 256.3 Where the complainant is dead during the course of the
enquiry, the Magistrate should not adjourn the case in order to enable
the complainant's son to come on record.4 But where a complaint was
filed by a servant on behalf of his master and on the date fixed for the
hearing finding that the complainant was dead, the Magistrate
acquitted the accused under this section, although in the meantime
another servant had complained to him of the same offence, it was
held that the order of acquittal was wholly without jurisdiction.5
(a) Substitution.—It has been held that in the case of a non-
cognizable offence instituted upon complaint, the axiom of "actio
personalis moritur cum persona", in civil law confined to torts, does
not apply and the trying Magistrate has discretion in proper cases to
allow the complaint to continue by a proper and fit complainant.6 The
Magistrate has every power to allow substitution upon demise of the
original complainant if he is satisfied from the surrounding
circumstances and materials on record that such substitution should
be given. This satisfaction is to be subjective satisfaction derived from
the records of the case and a satisfaction derived on fact as available
on record.7 The wife of the complainant may be allowed to continue
the complaint on the death of the complainant, when the defamatory
statement is about the whole family.8
A Division Bench of the Calcutta High Court has held that s. 256
(2), does not necessarily require that the accused must be acquitted in
a summons case on the death of the complainant. Where the stage for

1. Subbana Hedge v. Dyappa Gauda, 1980 Cr LJ 1405 (Kant) : (1980) 1 Kant LJ 384 ILR
(1980) 1 Kant 475 ; S. Reddappa v. Vijaya M., 1997 Cr LJ 98 (Kar).
2. M. G. Naidu v. Y. Kamalamma, 1984 Cr LJ 1326 (AP) ; See Ashwin v. State of
Maharashtra, 1967 ; Ram Kishan v. Prem Lata, 1998 Cr LJ 3365 (P&H).
3. 19 CWN 334 : 16 Cr LJ 322 ; 7 LBR 35 : 14 Cr LJ 404.
4. 51 Mad 339 : 54 MLJ 714.
5. 18 CWN 1211 : 26 IC 174.
6. T.N. Jayarajan v. Jayarajan, 1992 (3) Crimes 666 ; Subbamma v. Kannappachari, AIR
1969 Mysore 221 ; Mohammed Azam v. Emperor, 28 Bom LR 288 : AIR 1926 Bom 178 :
28 NLR 49 : AIR 1932 Nag 72.
7. Hirak Kumar Ghosh v. Jitendra Mansata, (1978) 82 CWN 309 ; Gautam Ranjan Basu v.
Shanta Mukheijee, 1995 Cr LJ 1131 (Cal).
8. Dhram Yash Dev v. Late Sri Sanjai Gandhi, 1981 Cr LJ NOC 99 (Del).
S. 256] Non-appearance or death of complainant 2831
arguments has been reached when the complainant dies, and his
brother who is an equally interested party desires to carry on the
case, the proper course for the Magistrate is to allow the brother to be
substituted as complainant and to allow the case to proceed.1 Sub-
section (2) of s. 256 widens the scope of sub-s. (1) so as to allow the
prosecution to be conducted by a proper person in place of the
complainant.2 Summons case instituted on a complaint does not
abate with the death of the complainant. Magistrate can permit a fit
and proper person to continue it. In case under s. 138 of Negotiable
Instruments Act the son of the complainant should have been
permitted to be substituted and order of acquittal was improper.3
(b) Magistrate's discretion.—The Magistrate is vested with the
discretion to decide, keeping in view the facts of such case, as to
whether on non-appearance of the complainant in a summons case
the accused should be acquitted or not and if he, for good reasons,
thinks it proper, the Magistrate can proceed with the complaint and
adjourn the matter although the complainant has died. If the offence
is personal to the complainant, the Magistrate can acquit the accused
on the death of the complainant, but where in a summons case, the
offence is not personal to the complainant and he is not the only
person aggrieved, then the Magistrate can exercise his discretion and
instead of acquitting the accused, he can adjourn the hearing of the
case.4
(c) Death of complainant in appeal.—Where a complainant dies
during appeal by the convicted accused, the State should defend the
appeal.5
(vi) Panchayat succeeding municipality.—As the complaint
under the various sections of the Municipalities Act cannot be
pursued by the successor Panchayat, there being no enabling
provision to do so, it has to be necessarily held than the complaint
cannot be proceeded with any further.6
9. Accused need not be present.—The section is not confined to
cases in which the accused appears in answer to the summons.
Where a case is disposed of under this section, the complainant and
accused both being absent, the order under the section operates as a
bar to further proceedings. The word "tried" in s. 300 is not confined
to the decision of the case on the merits, so far at least as proceedings
under s. 256 are concerned. There is, therefore, no reason for saying
that an accused, who has been served with process in a summons
case and does not appear, is not entitled to the full benefit of an

1. ILR (1947) 1 Cal 99. As to the case of a complainant in jail, see Rat 69.
2. Vishwa Nath v. Shambhu Nath Pandeya, 1994 ACrR 27 : 1995 Cr LJ 277 (All).
3. S. Reddappa v. Sri Vijaya M., 1997 Cr LJ 98 (Kar) : 1997 (2) Crimes 272 ; Subbamma v.
V. Raviselvam V. Nalini Vijai Kumar, 1999 (4) Crimes 209 (Mad) ', Kannappachari, AIR
1969 Mys 221 ; 1970 Cr LJ 59.
4. Om Saran v. Mrs. Satya Dhawan, 1990 Cr LJ 1619 (Del).
5. Kamala Kanta Rana v. Radibandhu Rana, 1996 Cr LJ 1904 (Ori).
6. Hajee P.M. Meeranan v. P. Venugopal, 1993 Cr LJ 364 (Ker) : 1993 (3) Crimes 727.
2832 Ch. XX— Trial of summons-cases by Magistrates [S. 256

acquittal, when the case against him has been dismissed under s.
256.
An order of acquittal passed by a Magistrate under s. 256,
although the accused had not been served with a summons, is a good
order.2
The important matter for an order under this section is the
presence or absence of the complainant. The presence or absence of
the accused is immaterial and is only of secondary importance if of
any importance at all.3 Where on the date of hearing, the complainant
though served was absent and the accused was unserved, the court
would not exercise a proper discretion in dismissing the complaint
and acquitting the accused.4
10. Mere absence of complainant will not operate as
acquittal.—Section 256, gives the Magistrate a discretion and the
absence of a complainant in a summons case cannot result in the
acquittal of the accused without the Magistrate passing any order in
exercise of that discretion.5 An order of acquittal cannot be considered
to have been automatically passed on the date the complainant was
absent.6 The right to an order of acquittal accrues to the accused
upon two conditions, and is dependent, first on the absence of the
complainant, and, secondly, on the court not adjourning the case. If a
case is not taken up at all, it cannot be said that the second condition
is fulfilled, for there is no knowing in what way the court's discretion
would have been exercised, if it had been taken up.7
11. Agent filing complaint and subsequently leaving
principal's services—Latter, if could be substituted as
complainant.—Where an estate agent files a complaint with respect
to an offence committed against the principal's property, but no power
of attorney is filed, and subsequently leaves his master's services, the
latter cannot be substituted as the complainant, with the result that
s. 256, would apply.8 But when a duly constituted attorney files a
complaint on behalf of his principal, the principal himself can
continue the case or another attorney can come in, when the original
attorney is replaced in the office of the attorney by the latter.9 So also
if the complainant is a company represented by an employee of the
company, then the complaint may be continued by another employee
of the company when the first employee ceases to be an employee of
the complainant company.10

1. 12 Cr LJ 41 : 34 Mad 253. See also 36 LW 379 : AIR 1932 Mad 563.

2. 53 Bom 693 : AIR 1929 Bom 408. See also 38 CWN 919 : AIR 1935 Cal 491.
3. 5 PLT 15 : AIR 1924 Pat 140. But see, infra.
4. AIR 1958 Manipur 19 : 1958 Cr LJ 1054.
5. AIR 1923 Cal 725 : 25 Cr LJ 492 ; E.L. Joseph v. Dharamarajan, 1998 Cr LJ 4099 (Ker).
6. AIR 1963 Raj 77.
7. 87 IC 970 : 26 Cr LJ 1050.
S. 1945 OWN 253 : AIR 1946 Oudh 15.
9. 1956 Cr LJ 1018 (1019) : AIR 1956 TC 189.
10. Ram Murti v. Anil Shashi Gore, 1978 Cr LJ 1177 (Del).
S. 256] Non-appearance or death of complainant 2833
12. Courses open to Magistrate under section.—In a summons
case, when the complainant is absent on the day appointed for the
hearing of the case, there is no provision in the Cr. P.C., to dismiss
the complaint or discharge the accused. Section 256, allows the
Magistrate either of three courses to be followed in the absence of the
complainant. He could acquit the accused or he could adjourn the
hearing of the case to some other day or if the personal attendance of
the complainant is not necessary, the Magistrate could dispense with
his attendance and proceed with the case.1 In other words, on the
absence of the complainant the court can (1) acquit the accused or (2)
adjourn the case for a future date or (3) dispense with the attendance
of the complainant and proceed with the case, and which course
Magistrate should adopt, is left to his discretion which is to be
exercised judicially.2 Section 256 gives discretion in the matter by
using the words "unless for some reasons he thinks it proper to
adjourn the hearing of the case to some other day". Section 256 (1),
gives three options to the Magistrate, namely, he may acquit the
accused or adjourn the case or dispense with the presence of the
complainant and proceed with the case. When a complaint is filed by
the Police S. I. in official capacity and he is not present on any date,
specially when his presence of that date is not necessary and
Assistant Public Prosecutor is there, the Magistrate may adjourn the
case and accused cannot claim acquittal as of right.3 An order issuing
bailable warrant to compel complainant's appearance is illegal.4 Under
s. 256, a Magistrate cannot order a summons case to be struck off
owing to the absence of the complainant.5 He can only pass an order
of acquittal. Where a complaint of an offence triable as a summons
case is dismissed for default of appearance of the complainant, the
order must be taken to have been passed under this section, even if
the order neither mentions nor is in terms of this section.6 However,
under s. 256, the accused can be acquitted and not discharged.7
13. "Magistrate shall acquit the accused, unless for some
reason he thinks proper to adjourn hearing of case".—The section
contemplates the use of discretion on the part of Magistrates in
dismissing complaints.8 The Magistrate has a discretion to adjourn
the hearing on any day when the complainant is absent.9
(i) Discretion to be exercised with great care and caution.—
Where a complainant does not attend court in person, the more
ordinary course for the Magistrate is to acquit the accused; the
exceptional course is if he had any particular reason for doing so, to

1. 1961 (2) Cr LJ 296 : AIR 1961 Tri 41 ; AIR 1963 Ori 90.
2. C. K. Sivaraman Achari v. D. K. Agrawal, 1978 Cr LJ 1376 (Ker) ; Vishwa Nath v.
Shambhu Nath, 1995 Cr LJ 277 (All).
3. Santosh v. State of Kerala, 1985 Cr LJ 756 (Ker).
4. 1961 Jab LJ 1246 : 1962 (1) Cr LJ 345.
5. 10 Bom LR 628 : 8 Cr LJ 139.
6. 77 IC 295 : 25 Cr LJ 359.
7. AIR 1955 Hyd 192.
8. 24 WR64 (65) (Cr) ; 5 WR51 (Cr).
9. 24 CWN 199 : 21 Cr T.T 9*0 • « m iim
2834 Ch. XX— Trial of summons-cases by Magistrates [S. 256

adjourn the hearing of the case to some other day. It is all a question
of Magistrate's discretion.1 Accused is entitled to acquittal unless
Magistrate chooses to adjourn the case.2 If the Magistrate proceeds
with the hearing and convicts the accused, the procedure adopted by
him is entirely illegal and the conviction is liable to be quashed.3
General rule is to acquit whereas an adjournment is an exception.4 In
a non-cognizable case on the absence of the complainant, the accused
should be acquitted, unless under the proviso Magistrate adjourns
the case for another date or dispenses with the attendance of the
complainant.5 The normal course on the non-appearance of the
complainant is to acquit the accused. But in his discretion, he may
adjourn the case or dispense with the attendance of the complainant,
which discretion must be exercised judicially and not on the whim of
the Magistrate.6 If the Magistrate finds no good reason to adjourn the
case or to dispense with the attendance of the complainant, he will
acquit the accused under the section. This discretion has to be
exercised by the Magistrate in judicious manner and not in a manner
so as to cause miscarriage of justice.7 It is necessary for the
Magistrate before acquitting the accused under the section to consider
whether the case is one which can be adjourned on the absence of the
complainant or in case proviso applies whether he should proceed
with the case in the absence of the complainant.8 The discretion
whether to adjourn or not has to be exercised with great care and
caution because the order is passed in the absence of a person who is
vitally affected by it and the consequences of the order are serious
and once the order of acquittal is passed, the Magistrate will be
helpless to correct the mischief even if he subsequently discovers that
the complainant had very good reason for his absence.
When the complainant, a public servant, was present almost all
the days (on 42 dates) and never sought adjournment and was absent
on one occasion, it was a fit case for adjournment instead of
acquitting the accused.10 Where the complainant absented for the first
time after 40 appearances, the Magistrate should have issued a notice
to the complainant before proceeding to acquit the accused." The
case was fixed for 5.10.92 and as that day was declared a holiday it
was taken up on 5.10.92. Neither party appeared on that date and
another date was fixed and notices sent. On the adjourned date again
the parties did not appear and the notices were also not received.

1. 37 Cr LJ 1028 : 1936 ALJ 954 : AIR 1936 All 658.

2. 49 Mad 883.
3. (1947) 2 MU 156 : AIR 1948 Mad 45 ; 1945 OWN 253 ; 23 PLT 291 : AIR 1942 Pat 46.
4. AIR 1952 Raj 136.
5. In re, E. Elumalai, 1971 Cr LJ 1396 (Mad).
6. State of U.P. v. Lai Bhadur, 1968 Cr LJ 223 (All) ; Hansraj Chawala v. District
Magistrate, 1966 Cr LJ 320 (AU).
7. Kumbhar Dhulabhai Kalubhai v. Patel Gansh Bhai Fulabhai, 1969 Cr LJ 729 (Guj).
8. Executive Officer v. Ram Chandra Agrawala, 1989 Cr LJ 1170 (Ori).
9. State of Mysore v. Akkamma, 1974 Cr LJ 214 (Mys).
10. State of Gujarat v. Dhirajlal Prem Shankar Bhatt, 1990 Cr LJ 2122 (Guj) : (1990) 31 Guj
LR 201.
11. State of Gujarat v. Dinesh Bhai Mehta, 1994 (3) Crimes 526 (Guj).
S. 256] Non-appearance or death of complainant 2835
Acquittal of the accused was not justified.' If the complainant is
absent, opportunity should be given by adjourning the case and it
should not be dismissed.2
Where a complaint is filed against the accused and reasons are
given by the complainant for absence of himself and his counsel,
dismissal of the complaint discharging the accused for non-
appearance of the complainant and his counsel will not be proper.3
Where a complaint is dismissed in default in the absence of the
complainant due to wrong noting of date of hearing by his counsel the
complaint was restored.4
(ii) Presence of complainant not necessary.—If the complainant
and his counsel both are absent on date fixed for the appearance of
the accused and accused is also not present, s. 256 (1) should not be
applied, if on that date the presence of the complainant was not
necessary for the proceeding.5 Before acquitting the accused on the
default of the complainant, it is the duty of the Magistrate to see
whether the personal attendance of the complainant is necessary on
the date. When the complainant had presumably finished all his
evidence, it is not a sound judicial discretion of the court to dismiss
the case of the complainant and acquit the accused without taking
into consideration whether the presence of the complainant is
necessary.6 Where the complainant had closed his case and had
adduced all the evidence that he proposed to adduce prior to a certain
date and the personal presence of the complainant was not at all
necessary for the further progress of the case, it was held that the
Magistrate exercised a sound discretion in not dismissing the
complaint.7 Appearance of complainant not material—case not to be
dismissed.8
When the court is recording the evidence of the prosecution and
its attention is drawn that the complainant is absent and the accused
is entitled for acquittal, the order of acquittal is not proper, because in
the circumstances it cannot be said that the court is not in a position
to proceed with the case when the counsel for the complainant is
present in the court to examine the prosecution witness. Before
dismissing the complaint and acquitting the accused, the court must
consider whether the presence of the complainant is necessary on
that date.9 In this view of the matter, the presence of the complainant
would not be necessary where he has been regularly appearing in the
court indicating his intention to prosecute the case effectively and
when the case was fixed for putting up the accusations to the

1. Umesh Kumar v. Moudgil Carpets & Rugs, 1994 (3) Crimes 30 (P&H).
2. Thiruvai Govindamma v. State of A.P., 1995 (3) Crimes 372 (AP) ; Jao Prakash Sharma
v. Jagdamba Prasad, 1980 Cr LJ 889 (HP).
3. Cheran & Co. v. P. K. Chandra Bose, 1996 Cr LJ (NOC) 296 (Mad).
4. Shiv Kumar v. Mohd. Saghir, 1997 Cr LJ 1264 (Del).
5. Signion Systems (P.) Ltd. v. Keonics Magnavision Computers Ltd., 1990 Cr LJ NOC 180
(AP).
6. AIR 1959 Raj 100, following 26 Cut LT 602.
7. 1964 All LJ 598.
8. AIR 1965 Raj 19.
9L Municipal Council Jaipur v. Rameshwar Lai, 1968 Cr LJ 719 (Raj).
2836 Ch. XX— Trial of summons-cases by Magistrates [S. 256

accused, the complainant put in the application alongwith out-door

patient slip indicating that he had suffered ankle sprain on account of
which he had been advised to take rest for ten days.1
(iii) No acquittal of accused on adjourned date of hearing.—
Where the complainant is absent on the date of hearing, the question
whether the accused should be acquitted or the hearing of the case
should be adjourned, under s. 256 has to be decided on that very day
of hearing on which the complainant is absent. Section 256 does not
permit an adjournment of the hearing of the case for the purpose of
determining whether on the previous date on which the complainant
was absent he had sufficient reason for absenting himself. Hence,
after adjourning the hearing, the Magistrate on the adjourned hearing
cannot proceed to acquit the accused on the ground that the
complainant was absent on the previous hearing.2 If the accused does
not raise any objection to the adjournment of the case and if the court
adjourns the case to another date, then on some future adjourned
date, he cannot with justification argue that he ought to have been
acquitted on the date on which Magistrate had adjourned the case.3
(iv) Magistrate to see whether case should not be adjourned.—
Section 256 gives the Magistrate a discretion not to acquit the
accused if he thinks that there are proper reasons for adjourning the
case. When the complainant appeared before him within a few
minutes of the calling of the case and before the order of acquittal was
actually passed, the Magistrate should certainly have satisfied himself
that reason for the few minute's delay were not indeed proper.4 In
other words, the Magistrate has got a discretion in the matter of
granting adjournment even in the case of absence of the complainant
and s. 256 does not say that the reason for granting adjournment
should be recorded.5 But whether the Magistrate had exercised his
discretion in the proper manner or in an arbitrary fashion will depend
upon the facts of each case and it cannot be argued that the court, as
a matter of routine, should acquit the accused if the complainant
happens not to be present on a particular date or time of hearing.6
The words "unless for some reason he thinks proper to adjourn the
hearing of the case to some other day" clearly mean that if there are
good reasons for the non-appearance of the complainant or if for some
other goods reasons, the Magistrate thinks it proper that the case
should be adjourned to another date, then it is not incumbent upon
him that he must acquit the accused.7 The Magistrate is bound to
satisfy himself that there are no justifiable reasons to adjourn the
hearing of the case.8 Section 256 prescribes that there has to be an

Vikas Kapoor v. Chet Ram, 1995 Cr LJ 1156 (HP), where order of dismissal of complaint
was set aside and case remitted.
2. AIR 1940 Nag 357, relying on 1962 MPLJ 538 : 1962 (2) Cr LJ 761 : AIR 1962 MP 383.
3. AIR 1959 Raj 33 ; AIR 1963 Raj 77.
4. 1961 Ker LT 797 : 1962 (2) Cr LJ 547.
5. G. Sundaresan v. M.S. Hardwares, 1995 Cr LJ 3243 (Ker).
6. 1958 C r L J 81 : AIR 1958 Pat 51.
7. ILR (1957) 7 Raj 894 : 1959 Cr LJ 233 : AIR 1959 Raj 33 : AIR 1962 Mad 403 : (1962) 2
MLJ 180.
8. AIR 1960 AP 193.
S. 256] Non-appearance or death of complainant 2837
acquittal of an accused person in the event of the absence of the
complainant; but where the Magistrate sees reason to adjourn the
case, he will do so to enable the complainant to prosecute his
complaint. The section does nor re-aquire that the reason which
weighed with the Magistrate in adjourning the case has to be
expressly stated. It merely means that if in the discretion of the
Magistrate an adjournment appears necessary, such adjournment will
be granted.' Where the Magistrate after recording the statement of a
witness adjourns the case on the ground that there was no time, this
is a valid reason within the meaning of s. 256.2 When the complaint is
in regard to a very serious offence, the court may adjourn the hearing
to some other day.3 The accused cannot demand his acquittal on
account of the complainant's absence if the complainant's counsel
presents an application for exemption from attendance and the case is
adjourned at the request of both parties for arguments on the
application and on the adjourned date, the Magistrate passes an order
exempting the complainant, although the Magistrate ought not to
have given an adjournment for arguments but ought to have decided
the matter forthwith.4
Where, however, the complainant was present on a number of
occasions and the trial of the case was not taken up for some reason
or the other, not for the absence of the complainant, the Magistrate
ought to have given an opportunity to the complainant for proceeding
with the trial of the case by adjourning the case finally to any other
date when the complainant was absent, instead of dismissing the
complaint.5
(v) Magistrate to apply mind to dispense with personal
attendance of complainant in proper cases.—Section 256 is
mandatory. It makes the personal attendance of the complainant in
court on the day of hearing, compulsory. The section makes no
distinction between a public servant complainant and an ordinary
complainant in respect of his personal attendance. If on the day of
hearing, the complainant is absent while the accused is present, the
court is bound to acquit the accused unless it thinks proper to
adjourn or the personal attendance of the complainant is dispensed
with. It is open to the Magistrate to dispense with the personal
attendance of the complainant either on an application made on his
behalf or the Magistrate may even suo motu dispense with his
attendance, but merely because the complainant happens to be a
District Magistrate and as such a busy man, he cannot absent himself
without the order of the court dispensing with his presence.6 The
Magistrates dealing with the summons cases are not to dismiss the
complaint merely because the complainant happens to be absent, but

1. 1959 Cr LJ 971 : AIR 1959 Cal 525 : AIR 1958 Pat 51. (Reason need not be recorded in
writing) ; 1963 ALJ 989 (Do).
2. AIR 1959 All 425.
3. 1962 (1) Cr LJ 345 : 1961 Jab LJ 1246.
4. 1957 Raj LW 399 : 1959 Cr LJ 233 : AIR 1959 Raj 33.
5. Theruvi Govindamma v. There Chenchaiah, 1995 Cr LJ 3121 (AP).
6. AIR 1954 Ajmer 31 (2), following AIR 1957 AP 977 and AIR 1958 AP 392, relying on AIR
1959 All 425, overruled 1960 All LJ 884 : AIR 1961 All 352 : 1961 (2) Cr LJ 47.
2838 Ch. XX— Trial of summons-cases by Magistrates [S. 256

they should apply their mind to the facts of each case and in fit cases,
dispense with the attendance of a complainant and to proceed with
the trial so that justice be done to the parties. This power can be
exercised at any stage of the proceedings and even on a day the
complainant is not in attendance. For exercise of such powers no
formal application is necessary and the court can act suo motu.'
The Magistrate should exercise the discretion carefully and
consider the circumstances and facts to find if the presence of the
complainant was necessary before ordering acquittal. Where the
complainant was exempted from appearance and the date was for
service of notice, acquittal for absence of complainant was not
warranted.2
Where security proceedings had been started upon a written
complaint of a public servant, the Magistrate would not be justified in
dismissing the complaint for non-appearance of the Public Prosecutor
when the accused was also absent. To such a case, the old proviso to
s. 256 was applicable and under that proviso, the Magistrate had to
exercise a judicial discretion. Since the case could not proceed on
account of the absence of the accused and the question of examining
the complainant could not arise by virtue of s. 200, proviso, the
attendance of the Public Prosecutor was not required and the
Magistrate should have dispensed with his attendance.3
It was further held under the old proviso that it was only in cases
where the personal attendance of the complainant was not necessary
that the proviso was attracted.4 This ruling applies to the present
proviso as well.
The proviso to s. 256 covers a wider range including cases where
public servants are complainants, but the test for dispensing with the
personal appearance of the complainant, is whether his personal
attendance is necessary in the case.
The object underlying the proviso is that if the presence of the
complainant is not necessary for the purposes 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.5
In the case of public servant-complainant, his examination is
dispensed with under proviso to s. 200 and his presence in court
unless expressly ordered is also not necessary on eveiy hearing.6
When the compliant has been filed by a responsible Head of the
Department like the Registrar of Companies, the power to dispense
with the attendance of the complainant should be freely exercised by
the court as his absence at the date of hearing is not likely to

1. 1961 (1) C r L J 305: AIR 1961 Punj 77.

2. Armugham Valliammal, 1982 (2) Cr LJ 1609 (Mad) ; Nityananda Samal v. Narprasad,
1982 Cr LJ 927 (Ori) ; C.K. Sivaraman Achari v. D.K. Agrawal, 1978 Cr LJ 1376.
3. ILR (1953) Hyd 457 : AIR 1953 Hyd 272.
4. 1956 Andh WR 642 : AIR 1957 AP 977.
5. AIR 1962 HP 57 ; AIR 1963 MP 125.
6. AIR 1963 MP 125 : 1963 (1) Cr LJ 442 (2).
S. 256] Non-appearance or death of complainant 2839
1
prejudice the fair trial. The court at its discretion can proceed with
the case and dispense with the attendance of the complainant without
any application from him.2 Where the complainant, a public servant,
was away due to official work and applied for adjournment, rejecting
the application and dismissing the complaint without giving reason is
not proper.3
Where the complainant, a public servant was absent on the first
date on which the accused appeared dismissal was not justified.4
14. Acquittal where proper.—Complaint on behalf of company—
Manager filing complaint retiring—New Manager not following proper
procedure for his substitution—Magistrate right in acquitting accused
under s. 256.'
Absence of complainant—Law agent of complainant filing hajri but
remaining absent—Acquittal justified.6
Complaint by Chief Inspector of Factories—Allegations against
accused having direct bearing with Office of Chief Inspector—
Appearance of Public Prosecutor—No steps, however, taken for
dispensing with personal appearance of complainant—In such
position, the only course open to the Magistrate under s. 256 is to
acquit the accused.7
Complaint under s. 159, Jammu and Kashmir Municipal Act by
Health Officer—Magistrate ordering Parokar to appear and produce
evidence on particular day—Neither he nor witnesses present on date
of hearing—Magistrate is justified in dismissing complaint and
acquitting accused.8
When the case is called in early hours of the court and neither the
complainant nor his pleader appeared whole day, the acquittal of
accused is justified.9 There is no illegality when the accused is
acquitted, when no one was present, neither complainant nor his
counsel, to produce evidence. On the absence of complainant and
his counsel, both, on the date of argument the accused may be
acquitted." The Magistrate is within his right in acquitting the
accused if the reason of the absence of the complainant is not known
to the Magistrate.12 The Magistrate may acquit the accused when on

1. 62 Punj LR 861 : 1961 (1) Cr LJ 305 : AIR 1961 Punj 77.

2. State of Haiyana v. Mansaram, 1973 Cr LJ 386 (P&H) ; Prabh Dayal v. R. Mudgil, 1966
Cr LJ 1045 (P&H) ; Mohd. Yamin v. Jafar Mohammad, 1968 Cr LJ 1981 (Del) ; State of
Bihar v. Ayodhya Sharma, 1973 Cr LJ 896 (Pat).
?. Sureshchandra Chandulal Patni v. Natwarlal Keshavlal Patni, 1992 (2) Crimes 793
(Guj).
4. State of Maharashtra v. M/s Dattaguru Construction Co., 1993 (2) Crimes 911 (Bom).
5. 1956 Ker LT 188 : 1956 Cr LJ 1018 : AIR 1956 TC 189.
6. AIR 1961 Pat 354 : 1961 (2) C r L J 356.
7. 26 Cut LT 658 : 1961 (2) Cr LJ 518.
8. AIR 1963 J&K 39.
9. Jai Prakash Sharma v. Jagdamba Prasad, 1980 Cr LJ 889 (HP) : 1980 Sim LC 146.
10. Shankar Sethi v. Deva Mahapatra, 1983 Cr LJ (NOC) 213 (Ori).
11. Ramaswami v. Gopalan, 1983 Cr LJ (NOC) 135 (Mad).
12. Sowbhagyam v. Kaliamusthi, 1971 Cr LJ 437 (Mad).
2840 Ch. XX— Trial of summons-cases by Magistrates [S. 256

the reasons of the absence of the complainant, no representation is

made to him. The court is not to wait up to close of the court.1
(i) Complaint instituted on police report.—A complaint
instituted on police report cannot end in acquittal of the accused
under this section on the ground that the complainant is absent. But
in a non-cognizable offence, the report of a police officer is deemed to
be complaint and the police officer who makes the report is again
deemed to be a complainant and if the police officer is absent on the
date of hearing, the Magistrate can rightly acquit the accused.2 If in
spite of several adjournments the complainant, a police officer, does
not appear nor the witnesses are available and there is no
representation about the absence, the Magistrate can acquit the
accused and there is no ground to set aside the acquittal.3
(ii) Absence of public servant complainant.—Where the
attendance of the complainant public servant was not actually
dispensed with and he was absent, the Magistrate could either
adjourn the case for proper reasons or acquit the accused. If the
Magistrate did not adjourn the case, he was bound to acquit the
accused and the failure to do so was not an irregularity that could be
cured under s. 465.4 Where neither the complainant, a public servant,
nor his advocate was present when the case was called, it could not
be, said that the Magistrate did not exercise his discretion properly in
dismissing the complaint.5
15. Acquittal where improper.—The accused should not be
acquitted only with a view to getting rid of complaints arbitrarily.6 If
the date on which the complainant is absent has been fixed for
consideration of the charge, the acquittal of accused is improper, as
the presence or absence of the complainant on the day is not
necessary.7 The power of acquittal under this section can be exercised
only when the complainant is absent on the date fixed. Unless this
condition exits, the Magistrate has no power to acquit the accused.8
When the complainant has been present almost on all the dates fixed,
the absence on one date will not justify the acquittal of the accused
under this section.9 When the complainant reaches court at 11.30
a.m. and finds the complaint dismissed and accused acquitted, the
order is improper.10 When the complainant had been attending the

1. Ram Pat Singh v. State of U.P., 1976 Cr LJ 288 (All) ; Provident Fund Inspector
Mangalore LAJ, Coelha, 1974 Cr LJ 68 (Mys).
2. C. M. Augustin v. State of Kerala, 1984 Cr LJ 1897 (Ker) : 1984 Ker LT 859.
3. Sivaraman Achari v. Agrawala, 1978 Cr LJ 1376 (Ker).
4. AIR 1954 Ajmer 31 (2) : 1954 Cr LJ 559, followed in AIR 1956 Ajmer 21. (Magistrate may
dispense with personal attendance of public servant complainant if his personal
attendance is not required, suo motu or on application by him).
5. AIR 1955 TC 31 : 1955 C r L J 321. See also AIR 1957 AP 977.
6. V.N. Soral v. Mohan Poonamia Jain, 1976 Cr LJ 1228 (Raj).
7. Golam Jalani Ansari v. Kebal Chand Sethia, 1977 Cr LJ (NOC) 12 (Gau).
8. Radha Kishan Bhakat v. Ram Nath Bhakat, 1975 Cr LJ 1579 (Cal).
9. State of Gujarat v. Dhirajlal Pranshankar Bhatt, 1990 Cr LJ 2122 (Guj) : (1990) 31 Guj
LR 201.
10. Guest Keen Williams Ltd. Delhi v. Murari Lai, 1984 Cr LJ 554 (Del) : 1984 Rajdhani LR
32 : (1984) 25 DLT 132 : (1984) 1 Crimes 16.
S. 256] Non-appearance or death of complainant 2841
court on every date fixed, but is absent on a particular date, that does
not show laches on the part of the complainant and acquittal will
amount to miscarriage of justice.1
(i) Complainant appearing after few minutes.—-The section
provides for the acquittal of the accused when the complainant does
not appear in court on the 'day' the case is posted. Unless the section
is interpreted as meaning that if the complainant is absent at the
moment the case is called the accused must be acquitted, the section
cannot justify the acquittal of the accused when the complainant is
actually not present when the order of acquittal is actually passed but
appears in court a few minutes after the case is called.2
(ii) Complainant public servant and accused's application for
time allowed.—Where the complainant was a Panchayat Officer
acting in his official capacity, the case was called soon after the court
began its sitting for the day, and the court had allowed the application
for time filed on behalf of the accused, the presence of the
complainant would have served no useful purpose and the acquittal of
the accused in such circumstances is a misuse of the discretion
vested in the Magistrate.3
(iii) Short absence of complainant for call of nature.—The
complainant was present in the court premises till 10.30 a.m. when
he was called by nature and after having come back he learnt about
the order of acquittal of the accused and approached the court at
about 12.30 p.m. through the lawyer to set aside the said order. It
appeared from the order sheet that the complainant had been diligent
throughout and attended the court on several occasions stretching
over a period of about eight months awaiting the filing of the enquiry
report. The case admittedly was fairly below in the cause-list. It also
appeared that the case was adjourned to that day for the appearance
of the accused and for nothing else. It was held that the Magistrate
should have better exercised his discretion by giving some more time
for the appearance of the complainant or even dispensed with his
attendance instead of passing an order of acquittal at such an early
hour of the day.4 Non-appearance of complainant in early hours of day
of hearing—Magistrate dismissing complaint in default—Complainant
not afforded opportunity to appear in later part of the day—Order of
dismissal held unsustainable.
(iv) Order not passed after application of judicial mind.—An
order under this section must be passed after application of the
judicial mind to the circumstances of each case. Where the Magistrate
has not directed the complainant for producing witnesses, the
Magistrate cannot dismiss the complaint and acquit the accused by
an order that the complainant is absent and his witnesses are also

1. Bhagirathi Ramamani v. Radhamma, 1971 Cr LJ 115 (Ker).

2. ILR (1951) 2 Ker 757 : 1962 (2) Cr LJ 547.
3. ILR (1962) 2 Ker 626 : 1963 (1) Cr LJ 667.
4. ILR (1963) Cut 49 : 1963 (1) Cr LJ 602 : AIR 1963 Ori 90.
5. 66 Pun LR 71.
2842 Ch. XX— Trial of summons-cases by Magistrates [S. 256

not present.1 When the case is called first at the beginning of the
court work and the complainant, who is a public servant, is not
present, the acquittal is not proper.2 When the Magistrate acquits the
accused on adjourned date when the complainant is present, on the
ground that on the previous date he was not present, such an order is
not proper.3
(v) Absence on date of argument.—It has been observed in
several decisions that even if the word "shall" has been used in s. 256
(1), the Magistrate has to exercise his discretion when the
complainant is absent and come to the conclusion if there is valid
ground for adjournment. If there is no such ground he may dismiss
the complaint and acquit the accused. If the complainant is absent on
the date fixed for argument, the date is not strictly a date fixed for
hearing within the meaning of s. 256 and the acquittal of the accused
will be improper.4
(vi) Complainant's presence when not necessary?—If the
complainant is not present, exercising his discretion judicially
Magistrate may acquit the accused or may adjourn the case recording
reasons or proceed under the proviso to sub-s. (1). On the absence of
the complainant at first, Magistrate should consider whether he is
unable to proceed with the case without the presence of the
complainant and if he is of the opinion that he cannot, then whether
in view of the fact that the complainant has been attending regularly,
the case be adjourned or proceeded with in the absence of the
complainant. If on that date, the court has to proceed under s. 251,
the presence of the complainant is not necessary and any order of
acquittal for that reason cannot stand.5 Where the complainant was
absent due to accident and an application with medical certificate was
moved and the presence of the accused was not necessary on that
date, dismissing complaint was illegal.6
(vii) Magistrate busy on earlier occasions.—If the complainant
and witnesses were in attendance on two occasions and the
Magistrate was busy otherwise and they could not be examined and
on one occasion finding them absent, the Magistrate acquitted the
accused, the acquittal is not proper.7
(viii) Absence of court.—Where the complainant is absent on the
day of hearing, an order of acquittal could be passed only if the court
is present. It cannot be passed in the absence of the court. Similarly,

1. Radha Krishna Das v. Murtunjaya Das, 1990 Cr LJ 2363 (Ori) : (1990) 3 OCR 334 ;
Satyanarayan Mahapatra v. Prafulla Kumar Patnaik, (1984) 58 Cut LT 396 : ILR (1983)
2 Ker 472 : (1983) Ker U 445.
2. State oi Himachal Pradesh v. Chaudhari Ram, 1980 Cr LJ (NOC) 33 (HP).
3. Mahendra Kumar Barik v. Dwijbar Barik, 1988 Cr LJ 1558 (Ori) : (1988) 65 Cut LT 324 :
(1988) 1 Crimes 907 ; Lingraj Padhan v. Guna Sahu, 1973 Cut LR 534 (Ori).
4. Govinda Chandra v. Radha Kant, 1987 Cr LJ 477 Cal : (1987) 91 Cal WN 941.
5. Anar Bibi v. Habibur Rahman, 1983 Cr LJ 1538 (Cal) : (1983) 87 Cal WN 550 : (1983) 2
Crimes 164.
6. Vikas Kapoor v. Chet Ram, 1994 (2) Crimes 1126 (HP).
7. State of Maharashtra v. Kishore Annaji Chawade, 1990 Cr LJ 1556-(Bom) : 1989 Mah LJ
1063.
S. 256] Non-appearance or death of complainant 2843
if the case is not taken up for hearing, the absence of the complainant
would not justify such an order.'
(ix) Case called on only for fixing new date.—If a case is only
nominally fixed for hearing, when it cannot reasonably be expected to
be reached and is not in fact reached during the day, it is
unreasonable to visit on the party for failing to be present to hear only
the new date of hearing the penalty for absence when the case is
actually called on. The mere unexplained absence of a complainant,
when a case is only called on for the purpose of fixing a new date is
not, under ss. 256 and 249, a good ground for taking action under
those sections.2
(x) No laches.—Where a complainant was prevented from
attending court on the day of the hearing on account of a heavy flood
which cut off all communications, and the Magistrate dismissed the
complaint, it was held that the Magistrate did not use his discretion
properly.3 The word "day" does not mean the whole day, but the point
of time when the particular case is called on for hearing. If the late
attendance of the complainant and failure of his pleader to make any
representation on his behalf is due to reasons beyond their control
and not an account of any laches on their part, the acquittal of the
accused under s. 256 is not justified.4
(xi) Complainant having done what is necessary to establish
case.—Where a complainant has done all that is necessary for him to
do to establish his case, a complaint ought not to be dismissed in
default of his attendance on an adjourned date, unless the Magistrate
has seen fit, for sufficient reasons, to require his attendance specially
on that date.5 Further, when the complainant has finished all his
evidence where the evidence of the accused is proceeding and where
the complainant's counsel is also present, it is not a sound judicial
discretion of the court to dismiss the case of the complainant and
acquit the accused without taking it into consideration whether
presence of the complainant is necessary.6
(xii) Date meant for securing defence witnesses.—The
Magistrate will not be exercising his discretion properly if he
dismisses a complaint for the complainant's failure on a date to which
the trial has been adjourned to secure the attendance of defence
witnesses.7 An order of acquittal passed by a Magistrate under s. 256
for absence of the complainant on the date fixed for defence evidence
is not justified as the further attendance of the complainant is not
really necessary and the Magistrate could have disposed the case on
the merits on the basis of material on the record in exercise of his
powers under the proviso to s. 256.8

1. AIR 1959 All 425.

2. 36 Bom LR 105 : AIR 1934 Bom 130 : 35 Cr LJ 1139 ; AIR 1958 Manipur 19.
3. 24 WR 64 (Cr).
4. P. Thimmappa v. Chinna Thimmappa, 1969 Cr LJ 852 (AP).
5. 2 Weir 306.
6. 1959 Cr LJ 656 : 1959 Raj LW 376 : AIR 1959 Raj 100, followed in 26 Cut LT 602. See
also 1964 ALJ 598 and AIR 1965 Raj 19.
7. 2 Weir 306.
8. 24 Cut LT 389.
Cr. P.C. 181
2844 Ch. XX— Trial of summons-cases by Magistrates [S. 256

(xiii) Other illustrative cases.—An order dismissing (after the

accused was put on his defence) a complaint, because the
complainant did not appear on a date to which the case was not
legally adjourned, is illegal.1 So also where a case is adjourned sine
die2 or when summons has not been served on the accusedJ when the
complainant's personal attendance has been dispensed with,4 when
the complainant's witnesses could not appear, on account of the
Magistrate shifting to a place different from that named in the
summons5 or when the order of adjournment was not made in the
presence and hearing of the parties.0 or where "a summons case" was
adjourned but the Magistrate did not inform the complainant where
the case would be taken up, but issued summonses to witnesses
inclusive of the complainant, to appear "either at Aligarh or
Talibnagar on the 5th July, 1982", or when a case was transferred
from one Magistrate to another and the complainant was with all his
witnesses in the court premises on the date fixed for hearing but not
having had notice of the transfer did not appear before the Magistrate
when the case was called on' or where notice of the date of hearing
was not given to or served on the complainant and as a consequence
of which he did not appear.8 Where the witnesses for prosecution did
not appear, acquittal of accused on this ground was held to be illegal.''
Where the complainant had been appearing on all dates and no
adjournment was ever sought by him and even when his witnesses
were present case was adjourned. On one occasion absence because
he had been transferred, matter should not have been disposed of."'
Where the complainant appeared for 40 dates, dismissing the
complaint on his not appearing on a date is indiscreet."
See the undermentioned decision—Records with District
Magistrate in connection with reference—Case adjourned by trial
court from time to time, for non-arrival of records—Prosecution
unaware of return of records—Case called and accused acquitted for
non-appearance of prosecution—Discretion, held not properly
exercised.12
16. Acquittal cannot be cancelled by acquitting court.—A court
which has acted under s. 256 has no power suo motu to restore the
case and cancel the acquittal. The only remedy of the complainant is

1. 16 WR 58 (Cr).
2. 16 WR 58 (Cr).
3. 2 Weir 307.
4. AIR 1934 Lah 195.
5. 5 WR 51 (Cr).
6. 8 MHCR App vi.
7. 13 CLR 303 (305). See also 24 CLJ 444 : 18 Cr LJ 104 : 37 IC 312.
8. 1928 MWN 801 : AIR 1928 Mad 1158. See also 2 Weir 307 ; 18 CWN 1180 ; 113 IC 625 :
30 Cr LJ 191.
9. State of Maharashtra v. Kishore Annaji Chawade, 1990 Cr LJ 1556.
10. State of Gujarat v. Dhirajla Pranshankar Bhatt, 1990 Cr LJ 2122 (Guj) ; Shiv Kumar v.
Mohd. Saghir, 1997 Cr LJ 1264 (Del).
11. State of Gujarat v. Dinesh Bhai Mehta, 1994 (3) Crimes 526 (Guj) ; Also see Theruvai
Govindamma v. There Chenchaiah, 1995 (3) Crimes 372 (AP).
12. ILR (1953) Mys 329 : AIR 1953 Mys 146.
S. 256] Non-appearance or death of complainant 2845
1
to move the High Court in revision. However, where an accused is
acquitted under s. 256 on the absence of the complainant, as he was
not knowing that his case has been transferred to another court, the
court may review its own order as the complainant was not negligent.2
The Calcutta and Allahabad High Courts are of the view that a
mistaken order of acquittal purporting to be under s. 256 passed on a
day other than the date of hearing is no order at all but a mere nullity
and can be ignored by the court on the discovery of the mistake,
though the Madras High Court is of the view that the trial court has
no right to rectify the mistake and review its order. The view of the
Calcutta and Allahabad High Courts are sound as the order of
acquittal is due to mistake.3
But the Supreme Court has set the controversy at rest in stating
that when a complaint is dismissed and the accused is acquitted
under s. 256, the Magistrate has no inherent power to recall his own
order and review the complaint.4 Therefore, the Magistrate has got no
powers to recall or review his order of acquittal of the accused passed
under s. 256.5
17. Effect of order under section
(i) Where operates as bar.—When a complaint is dismissed for
default under this section, the accused cannot be tried on the same
facts for the same offence on the complaint of another person." A
dismissal of a complaint under s. 256 for default of the complainant
to appear and acquittal of one of the accused puts an end to the case
also against the other accused, who are not before the court.' Where a
Magistrate summoned the accused for one of several offences alleged
against them, and acquitted them of the offence for which they were
summoned, he cannot summon them again for all the offences alleged
against them on the prior occasion.8 An acquittal, under this section,
of the accused on a charge under s. 426, I.P.C., is bar to his being put
on trial again on the same facts on a charge under s. 379, I.P.C/'
Section 300, bars a fresh trial and includes the cases of acquittal
under s. 256.10 An acquittal under s. 256 acts as a bar to further
proceeding equally with an acquittal after trial on the merits by virtue
of s. 300. If on the death of the complainant accused is acquitted
under s. 256, no fresh complaint can be filed on the same facts and
for the same offence.12 As under this section there can be, no order of

1. 1930 MWN 190 ; 38 CLJ 196 : 73 IC 940 : 52 MLJ 173 : AIR 1927 Mad 473.
2. Nidhi Jena v. Jaladhar Jena, 1985 Cr LJ (NOC) 65 (Ori).
3. Pritam Singh v. State, 1969 Cr LJ 1329 (All).
4. Maj. Gen. A S. Gauraya v. S. N. Thakur, 1986 Cr LJ 1074 (SC).
5. Naga Theatre v. Provident Fund Inspector, 1992 Cr LJ 1727 (Kant) : 1992 (2) Crimes
127.
6. 1885 AWN 43.
7. 4 CWN 346.
8. 2 CLJ 632 : 3 Cr LJ 115.
9. 37 CLJ 253 : AIR 1923 Cal 407.
10. 2 PLT 170 : 61 IC 59 : 22 Cr LJ 331 ; 5 PLT 15 : AIR 1924 Pat 140 ; 37 Pat 23 : AIR
1958 Pat 239.
11. 45 All 58 ; Sham Lai v. State of Punjab, 1997 Cr LJ 2456 (P&H) ; Bhagat Ram v. State of
Punjab, 1987 (2) CLR 329 (P&H).
12. State of Mysore v. Ramiah, 1968 Cr LJ 1669 (Mys).
2846 Ch. XX— Trial of summons-cases by Magistrates [S. 256

discharge on the non-appearance of the complainant but only order of

acquittal, so the order will bar a second trial for the same offence
under s. 300.1
The procedure under s. 256, at whatever stage of the proceedings
it may be applied whether before or after the summons has been
served or the accused has appeared or the particulars of the offence
have been stated to him, is a "trial" within the meaning of s. 300.
Hence, an acquittal under s. 256 is an acquittal which bars a further
trial under s. 300.2 The trial in a summons case commences with the
issue of notice to the accused, and if subsequently, at an adjourned
hearing, the complainant is absent and the accused is acquitted, it
must be held that the accused is both tried and acquitted for
purposes of s. 300. Section 300 would operate as a bar to a further
trial on the same charge. A successor of the Magistrate acquitting the
accused has no jurisdiction to entertain a second complaint, as that
in effect would be to revise or review the order of his predecessor.3
A Magistrate cannot take cognizance of a fresh complaint, when
the previous complaint had been disposed of under s. 256 and the
accused acquitted owing to the absence of the complainant even
though the previous order of acquittal might have been passed under
a mis-apprehension. A wrong order under s. 256 can be set aside by
the court, but if the complainant does not choose to take proper steps
by way of revision he cannot ignore the order altogether so as to file a
fresh complaint.4
(ii) Where does not operate as bar.—Where an order of acquittal
is wholly without jurisdiction as where a Magistrate acquits the
accused on the ground that the complainant is dead, there is no bar
to the Magistrate's taking cognizance of a second complaint.5 A
dismissal of a complaint when the proceedings have been
substantially so irregular as to amount to no trial will not operate as
an acquittal, as for example, where a case is adjourned to a particular
date and the Magistrate posts the case of his own motion to a later
date without any intimation being given to the parties and dismisses
the complaint for default on the later date.6 A case was called on by
mistake on a date not fixed for hearing and the Magistrate recorded
an order of acquittal under s. 256, on account of the absence of the
complainant. On the date fixed for hearing, the mistake was
discovered and the Magistrate ignored the order previously passed by
him under s. 256 and went on with the case which ended in a
conviction. It was held that an order passed on a date, which was not
fixed for the hearing of the case and on which date the complainant

1. Raj Kumar M. Singh v. Nameirakpam Angsu Singh, 1969 Cr LJ 844 (Manipur) ;

Chandra Pati v. Badi Gigira, 1985 Cr LJ NOC 109 (Ori) ; State of Mysore v. Akkamma,
1974 Cr LJ 214 (Mys).
2. AIR 1953 Cal 197 : 1953 Cr LJ 496, relying on 33 CWN 260 and 39 CWN 919. But see
40 Mad 977 (FN).
3. AIR 1943 Mad 6 : (1942) 2 MLJ 221. See also ILR (1942) 2 Cal 403 : AIR 1943 Cal 29.
4. 2 PLT 170 : 61 IC 59 : 22 Cr LJ 331. See also 53 Bom 693 ; 1963 B U R 615.
5. 18 CN 1211 : Harendra v. Naipal Singh, 1996 Cr U 91 (All).
6. 2 Weir 307.
S. 256] Non-appearance or death of complainant 2847
was necessarily absent, was no order at all, and the trying Magistrate
had jurisdiction to ignore it and go on with the case and come to the
finding which he did.1 An order of dismissal of a complaint on an
adjourned day of hearing of which the complainant has no knowledge
or notice does not amount to an order of acquittal under this section.
In such a case, it cannot be said that the hearing of the case stood
adjourned to the date on which it was dismissed on account of the
absence of the complainant.2 Where the complainant had no notice of
the adjourned date and was, therefore, necessarily absent, an order of
acquittal is not valid.3
Where a person after preferring a complaint was incarcerated in a
criminal jail for an offence and was then not able to appear on the day
of hearing and the complaint was in consequence dismissed, it was
held that under these circumstances the case might be taken up and
proceeded with again.4
Where the lower court proceeded with the case and acquitted the
accused under s. 256 though the Additional District Magistrate took
the case on his own file and ordered stay of further proceedings, the
order of Additional District Magistrate not having been communicated
to the proper court, it was held that s. 300, was no bar to a re-trial of
the accused.5
The accused were charged under s. 186, I.P.C., on the report of
the Naib Nazir to the Munsiff in execution proceedings. The
Magistrate made an order that as there was no formal complaint "the
accused were released" and also directed the Naib Nazir to make a
formal complaint in writing if he thought fit. The formal complaint
was then made, the accused were charged, tried and convicted. It was
held that the order did not fall within s. 256 and was strictly speaking
outside the four corners of the Cr. P.C. altogether and that it was no
bar to the second trial.6 Where a complaint was dismissed due to
absence of the complainant without considering the merits of the
case, a second complaint would lie.7
18. Proceedings taken in absence of complainant without
dispensing with his personal attendance—Not illegal.—In a
summons case merely because some proceedings were taken by the
Magistrate in the absence of the complainant without dispensing with
his personal attendance, the proceedings would not be vitiated unless
some prejudice was shown to have been caused to the accused.8
19. Power of Magistrate to recall dismissal order.—A Magistrate
has no power to recall his order of dismissal of a complaint u/s 138

18 CWN 1180 : AIR 42 Cal 365 ; 1935 ALJ 1061 : AIR 1934 All 1025.
113 IC 625 : 30 C r L J 191.
3. 52 Mad 695. See Per Jack, J., in 62 Cal 1119 (1126). In such cases, however, the order
of acquittal should be set aside before the case can proceed.
Rat 69. See also 1993 Cr LJ 2547 (All).
AIR 1929 Cal 657.
6. AIR 1932 Cal 871 : 60 Cal 149. See also Note to s. 300, infra.
Harish Chand Mittal v. Smt. Laxmi Devi, 1996 Cr LJ 4258 (All) following Dwarika Nath
Mondal v. Beni Madhab Baneijee, 1901 ILR 28 Cal 652 FB.
8. AIR 1963 Raj 77.
2848 Ch. XX— Trial of summons-cases by Magistrates [S. 256

Negotiable Instruments Act, in default. However, where the

complainant was present in the court when case was called and yet
the case was dismissed in default under some confusion, it was held
that Magistrate can revive dismissal order.2
20. Appeal and revision
(i) Appeal.—An appeal against an order of acquittal is provided for
in s. 378. That section also provides for appeal against acquittal in a
case instituted upon complaint with the special leave of the High
Court. It has been held that the High Court will set aside in appeal an
improper acquittal under the section.3 But where the Magistrate has
exercised his discretion, the appellate court is not right in setting at
naught the discretion exercised by the Magistrate in the matter,
particularly when it does not appear to have been exercised
capriciously or arbitrarily.4 Where the order of acquittal under s. 256
is legal and competent, it will not be interfered with in appeal
preferred under s 378 by the complainant if the reason for his non-
appearance on the date fixed for hearing is unconvincing.5 When in
appeal the High Court is satisfied that the complainant reached in the
court within minutes after his case was disposed and was late due to
failure of the bus, the High Court may set aside the order of acquittal
and restore the complaint for hearing by the Magistrate.6
(ii) Revision.—The exercise of revisional jurisdiction is
discretionary. It has always been regarded as a sound rule of practice
not to interfere when there is no error in law or fact on the record,
and not to interfere in case of acquittal in which Government might
have appealed under s. 378, but has not done so.7 In revision, an
acquittal should very rarely be set aside.8 But when the trial court
commits a serious irregularity in the trial, the High Court will
interfere and set aside the order of acquittal. Where the trial
Magistrate holds a local inquiry without any notice to the parties and
utilises his observation in the course of that enquiry for coming to a
finding, and on the basis of that finding suddenly alters the charge
and acquits the accused under s. 256, the order of acquittal is liable
to be set aside.9 The High Court has power to interfere in revision with
an order of a Magistrate under s. 256, when the order is improper.
Where a Magistrate dismissed a case for non-appearance of the
complainant and it appeared that the case had previously been
adjourned six times and at no time at the instance of the
complainant, it was held that those circumstances were not sufficient
to show that the Magistrate exercised his discretion improperly.10

1. Harish Chandra v. Kanti Lai, 1998 Cr LJ 3754 (Bom).

2. R.S. Sundara Raju v. M/s Tiumala Finance & Investments, Kakinada, 1997 Cr LJ 3597
(AP).
3. ILR (1953) Mys 329.
4. 1964 ALJ 598.
5. (1958) Andh LT 295. See Note under s. 378, infra.
6. K. Papi Reddy v. P. Lakshmi Narayana, 1968 Cr LJ 1644 (AP).
7. 26 MLJ 160 : 38 Mad 1028.
8. 52 MLJ 173.
9. 19 Pat LT 918 : AIR 1939 Pat 186.
10. 17 LW 229 ; 24 LW 669, relied on 24 LW 715 : AIR 1927 Mad 172.
S. 257] Withdrawal of complaint 2849
Where there was a manifestly wrong order and though an appeal was
maintainable but erroneously a revision was filed the court can
exercise revisional powers to set right the grave injustice caused by
the order.1 No second revision lies before High Court against a
revisional order of Sessions Court even though styled as criminal
appeal.2
(iii) Review.—Where the complaint is dismissed in spite of the
complainant being present, the order is a nullity and without
jurisdiction and can be ignored and the complaint proceeded with.3
But if the complainant was absent, the Magistrate has no power to
review even if the absence was justified.4
257. Withdrawal of complaint.—If a c o m p l a i n a n t , at a n y
time before a f i n a l order is p a s s e d in a n y case u n d e r t h i s
C h a p t e r , satisfies the Magistrate that there are sufficient
g r o u n d s for p e r m i t t i n g h i m t o w i t h d r a w h i s c o m p l a i n t a g a i n s t
the a c c u s e d , or if there be more t h a n one a c c u s e d , a g a i n s t a l l or
a n y of them, the Magistrate m a y permit h i m to w i t h d r a w the
same, a n d s h a l l t h e r e u p o n a c q u i t the a c c u s e d a g a i n s t w h o m
the c o m p l a i n t is so w i t h d r a w n .
Synopsis

1. Legislative history, 2849

2. Provision applicable only to summons cases on complaints, 2850
3. Composition of complaint relating to compoundable and non-compoundable
offences, 2850
4. "Withdrawal" and "compromise"—Distinction between, 2851
5. Right of withdrawal not absolute, 2851
6. Withdrawal of complaint, if operates as acquittal, 2852
7. Acquittal without a charge having been framed, 2852
8. Withdrawal of complaint, 2852
(i) Magistrate alone can permit withdrawal, 2852
(ii) Mode of withdrawal, 2852
(iii) Who may apply for withdrawal, 2853
(iv) Resiling from withdrawal of complaint—Permissibility, 2853
(v) Order permitting withdrawal of case—Omission to record
reasons—Effect, 2853
(vi) Withdrawal against one accused—Effect on others, 2853
9. Acquittal under section, if bars further proceedings, 2853
1. Legislative history.—Section 257, corresponds to s. 248 of the
old Code, but after the words "withdrawn his complaint" the words
"against the accused, or if there be more than one accused, against all
or any of them" and in the end of the section after the word "accused"
the words "against whom the complaint is so withdrawn" have been
inserted in the section.

1. Rabindra Behera v. Sridhai Amantray, 1995 (4) Crimes 66 (Orissa).

2. B. Lakhmaiah v. Veeramalli Nagesh, 1999 Cr LJ 1107 (AP).
R.S. Sundara Raju v. M/s Tiumala Finance and Investments, Kakinada, 1997 Cr LJ
3597 (AP).
4. Bindeshri Prasad Singh. V. Kailash,1978 Cr LJ 187 : AIR 1977 SC 2432 ; A.S. Gauraya
v. S.N. Thakur, AIR 1986 SC 1440 : 1986 Cr LJ 1074.
2850 Ch. XX— Trial of summons-cases by Magistrates [S. 257

2. Provision applicable only to summons cases on

complaints.—Section 257 applies only to summons cases.' It cannot
be invoked in a warrant case.2 The Magistrate has ample jurisdiction
to permit the complainant to withdraw the complaint in a summons
case.3
This section applies to cases on complaints in the strict sense,
e.g., in a case where a Magistrate takes cognizance of a case on a
police-report made in consequence of information given by A, A
cannot be allowed to withdraw.4
The person who filed the report to the police cannot withdraw the
charge-sheet under s. 257, when a Magistrate has taken cognizance
on the police report.5
A complainant in a summons case may apply for permission to
withdraw his complaint but if the Magistrate has taken cognizance of
the offence on a police report, the informant, on whose information
police investigated and made report cannot be permitted to withdraw
the case as he is not the complainant who filed the complaint.6
Complainant lodging F.I.R. and during police investigation filing
complaint before Magistrate—Proper procedure for Magistrate is to
keep the complaint pending and amalgamate it with police case on
submission of charge-sheet by police—Application by complainant for
withdrawal of complaint case on ground that case on submission of
charge-sheet by police was pending before same Magistrate—Order
allowing withdrawal and acquitting accused is neither proper nor
legal.7
3. Composition of complaint relating to compoundable and
non-compoundable offences.—A case under s. 24 of the Cattle
Trespass Act, 1871, is a summons case. If the complainant enters
into a compromise with the persons accused of committing offences
under s. 24 of the Cattle Trespass Act and s. 323, I.P.C., the
Magistrate is entitled to deal with it as a withdrawal of the complaint
in respect of the alleged offence under the Cattle Trespass Act and has
jurisdiction to acquit the accused under this section, although the
offence under the Cattle Trespass Act is a non-compoundable one.8 In
a case like that, the Magistrate while dropping the proceedings
relating to the offence under s. 323, I.P.C. should not continue
against the wishes of the complainant the proceedings in regard to the
offence under the Cattle Trespass Act. He ought to properly exercise
his discretion under this section and permit the complainant to

1. 13 Bom 600 (606) ; 21 Cal 103 ; 6 Mad 316.

2. 37 Bom 369 (372). See also 71 IC 248 (251) ; 10 Cal 551 (553) ; 5 Mad 378 ; 22 Bom
711 (713).
3. Cricket Association of Bengal v. State of West Bengal, 1971 Cr LJ 1432 (SC) : AIR 1971
SC 1925.
4. 23 Mad 626 (628) : 2 Weir 310.
5. Thathapadi Venkatalakshmi v. State of A.P., 1991 Cr LJ 749 (AP).
6. State of Gujarat v. Bharwad Popat Jina, 1970 Cr LJ 919 (Guj).
7. 1965(1) C r L J 55: AIR 1965 Ori 6.
8. 42 All 202 : 18 ALJ 96.
S. 257] Withdrawal of complaint 2851
withdraw the complaint.' Complainant's petition stating that with
regard to offence under s. 24, Cattle Trespass Act, he had no
witnesses to prove his complaint, should be deemed to be one under
s. 257.
4. "Withdrawal" and "compromise"—Distinction between.—
"Compromise" is a word which in itself contemplates an arrangement
to which there are two parties. "Withdrawal" has no such meaning. A
case is compromised if with the consent of the accused, it is
withdrawn. A case is withdrawn under s. 257 without the consent of
the accused.3 [But the consent or permission of the court is
necessary].
5. Right of withdrawal not absolute.—This section enables a
complaint, at any time before a final order is passed by the Magistrate
for withdrawal of a case; it is only when he satisfies the Magistrate
that there are sufficient grounds for permitting him to withdraw his
complaint that such permission is granted. It follows, therefore, that
there is no absolute power of withdrawal and that, before a
withdrawal can be permitted, there must be sufficient ground to the
satisfaction of the Magistrate.4 It was held under the Code of 1882
that the "withdrawal of a complaint" was the act of only one party to
the proceeding, namely, the complainant, whereas the "composition"
of an offence obviously required the co-operation of both parties. For,
a person is said to compound an offence when forbears to prosecute
the offender in consideration of receiving some reward or advantage
for his forbearance. It is quite intelligible, therefore, why, in the former
case, namely the withdrawal of complainant, the Legislature should
have imposed the necessity of obtaining the permission of the
Magistrate. Had such a restriction not been imposed, a person might
be harassed by a perfectly vexatious criminal proceeding from which
the complainant, having put the accused to as much inconvenience
and degradation as he could, might then, calmly withdraw. To prevent
the processes of criminal courts from being thus abused, and at the
same time of placing a ready means of summary redress in the hands
of the Magistrate trying the case, the Legislature enacted ss. 257 and
250, the provisions of which contain a reasonable protection for
accused persons.5 Section 537 of the Calcutta Municipal Act has not
affected or abrogated this section so far as cases or proceedings
started by the Corporation are concerned. Section 537 is merely an
enabling one and the powers given thereunder can only be exercised
according to the Cr.P.C. No absolute power of withdrawal is given to
the Corporation under s. 537, and before a withdrawal can be
permitted, there must be sufficient ground to the satisfaction of the
Magistrate, who can, in his discretion, reject an application for
withdrawal filed by the Corporation.6

1. 41PLRJ&K93.
2. AIR 1949 Mad 501.
3. 20 CWN 1209 : 18 Cr LJ 107.
4 53 Cal 631 : AIR 1926 Cal 786.
5. 19 PR 1888 (Cr).
6. 30 CWN 598 : AIR 1926 Cal 786.
2852 Ch. XX— Trial of summons-cases by Magistrates [S. 257

6. Withdrawal of complaint, if operates as acquittal.—It is clear

from the terms in which s. 257 is expressed that the withdrawal of a
complaint does not by itself operate as an acquittal, but an order of
acquittal by the Magistrate is further necessary. It is true that the
section directs that the Magistrate shall acquit the accused but if the
Magistrate does not actually do so, one of the essential facts
necessary for attracting the operation of the section is lacking.' A
complaint under s. 12(5), West Bengal Bargadars Act and ss. 143,
442 and 426, I.P.C., which were summons case offences was filed
against the accused. Subsequently, the charges under the I.P.C. were
withdrawn by the complainant with the permission of the court, but
no formal order as required by s. 257, was passed, acquitting the
accused of those charges. The only remaining charge under s. 12(5) of
the Bargadars Act was proceeded with but thereafter the Bargadars
Act expired with the result that even the trial with respect to s. 12(5)
could not continue. The complainant thereupon applied that the
abandoned charges under the I.P.C. should be revived and proceeded
with. It was held that the charges under the I.P.C. could not be
revived and continued even though there was no formal order of
acquittal in respect of those charges.2
7. Acquittal without a charge having been framed.—There are
only three contingencies under which a person can be acquitted
without a charge having been framed against him, (1) in summons
cases by the operation of s. 257, (2) under s. 320, when there has
been a valid composition.3 It may be pointed out that there is also
another case, viz., non-appearance of the complainant, in which the
court may order an acquittal.4
8. Withdrawal of complaint
(i) Magistrate alone can permit withdrawal.—The section does
not empower a police-officer to entertain an application for
withdrawal. As permitting a withdrawal is a judicial act, a Magistrate
alone can do it. A petition for the withdrawal of a complaint is to be
inquired into by the judicial officer charged with the duty of
determining judicially matters which come before him. He should not
refer it to the Superintendent of Police to determine whether the
offences should be allowed to be compounded and the case withdrawn
or not.6
(ii) Mode of withdrawal.—A withdrawal must be intimated to the
Magistrate holding the trial.7 Section 257 requires (1) a request from
the complainant for the withdrawal of the complaint, (2) the
complainant should satisfy the court that there are sufficient grounds
for permitting the withdrawal, (3) the Magistrate should permit the
withdrawal and (4) the Magistrate should acquit the accused after he

1. 55 CWN 751. But see, infra.

2. 61 Cal WN 907.
3. 71 IC 248 (2) : 24 C r L J 120 (2).
4. See s. 256, supra.
5. Rat 91.
6. 43 C r L J 214.
7. 21 Cal 103.
S. 257] Withdrawal of complaint 2853
permits the withdrawal. It follows that where there is a mere request
for the return of the papers and there is an order directing their
return but there is no order allowing the withdrawal, the conditions
required by s. 257 are not present and the order of the Magistrate
cannot amount to an acquittal.1
(iii) Who may apply for withdrawal ?—The section provides
that a complainant in a summons case may apply for permission to
withdraw his complaint and this section can have application only
when the Magistrate has taken cognizance of a case upon a complaint
preferred to him by the person who seeks to withdraw the complaint.
Where an application for withdrawal is made by a person who is not a
complainant, the Magistrate cannot grant permission to withdraw the
complaint.2 It is not open to a Municipal Council to withdraw a
complaint duly instituted by the Secretary of the Municipality.3 In
cases of contempt of lawful authority of a public servant, the
complainant is the public servant whose authority had been resisted
and not the person injured by such resistance.4
(iv) Resiling from withdrawal of complaint—Permissibility.—
When a litigant files an application in court stating that he has
withdrawn his complaint against his opposite party and for some
reason or other, the court is not able to pass orders immediately, it is
not open to that litigant later on to come forward sind plead that he
has changed his mind and that the previous petition should not be
acted upon.5
(v) Order permitting withdrawal of case—Omission to record
reason Effect.—A Magistrate should, in his order permitting the
withdrawal of the case, place sufficient materials on the record to
satisfy the High Court that prima facie there was some good ground
for the same. But the failure on the part of the Magistrate to place
such materials on the record is not by itself sufficient to justify
interference by the High Court with the order. Before such
interference, the High Court should be satisfied that there are no
materials on which the order can be maintained.6
(vi) Withdrawal against one accused—Effect on others.—If a
complaint is made against several persons and is withdrawn against
some of the accused with the permission of the Magistrate, it does not
amount to a withdrawal of the complaint against the other accused.7
There is nothing in s. 257, which involves a withdrawal of the whole
complaint, merely because the complaint is withdrawn against one of
the accused.8
9. Acquittal under section, if bars further proceedings.—See
comments on s. 300, infra.

1. ILR (1947) All 734 : AIR 1947 All 370.

2. ILR (1940) Kar 429 : AIR 1940 Sind 112.
3. 15 C r L J 299 : 27 MLJ 617.
4. 2 Bom 653.
5. AIR 1949 Mad 501 : (1948) 2 MLJ 571.
6. 146 IC 542 : AIR 1933 Sind 357.
7. AIR 1922 Oudh 145: 23 C r L J 271.
8. 5 Lah 239 : AIR 1924 Lah 595 ; 51 LW 515 : AIR 1940 Mad 623 ; 1963 BLJR 627 : AIR
1963 Pat 303 (FB), overruling MR 1920 Pat 828.
2854 Ch. XX— Trial of summons-cases by Magistrates [S. 258

258. Power to stop proceedings in certain cases.—In a n y

s u m m o n s - c a s e i n s t i t u t e d otherwise t h a n u p o n complaint, a
Magistrate of the first class or, w i t h the previous s a n c t i o n of the
C h i e f J u d i c i a l Magistrate, any other J u d i c i a l Magistrate, may,
for reasons to be recorded by him, stop the proceedings at a n y
stage w i t h o u t p r o n o u n c i n g a n y j u d g m e n t a n d where s u c h
stoppage of proceedings is made after the evidence of the
p r i n c i p a l witnesses h a s b e e n recorded, p r o n o u n c e a j u d g m e n t
of acquittal, a n d in a n y other case, release the accused, a n d
s u c h release s h a l l have the effect of discharge.
Synopsis

1. Legislative history, 2854

2. Scope and applicability, 2854
(ij Applicable only to summons cases instituted otherwise than upon
complaint, 2855
(ii) "Summons case instituted otherwise than upon complaint", 2855
3. Stay of proceedings—When may be ordered, 2856
4. Effect of order—Not interlocutory, 2856
5. Claim for discharge—Stage, 2587
1. Legislative history.—Section 258, corresponds to s. 249 of the
old Code and the word "summons" has been added after the word "in
any" but the words "a Presidency Magistrate" after the word
"complaint" have been dropped and the words "Chief Judicial
Magistrate, any other Judicial Magistrate" have been substituted for
the words "District Magistrate, any other Magistrate" and after the
words "any judgment" the words "and where such stoppage of
proceedings is made after the evidence of the principal witnesses has
been recorded, pronounce a judgment of acquittal, and in any other
case, release the accused and such release shall have the effect of
discharge" have been substituted for the words "either of acquittal or
conviction, and may thereupon release the accused".
2. Scope and applicability.—It is an enabling section and is to be
applied in very special and compelling circumstances. If the
Magistrate acts under this section and stoppage of proceedings is
made after the evidence of principal witness has been recorded, he
can pronounce a judgment of acquittal and in any other case, release
the accused which will have the effect of discharge.1 The power under
this section to stop the proceedings at any stage is to be exercised
sparingly and only if exceptional circumstances are there. If there is
no evidence against the accused, he can be discharged or acquitted as
the case may be, depending on the stage to which the proceedings
have reached.2 Under the section, in summons case instituted
otherwise than upon a complaint, the Magistrate has been empowered
to stop the proceedings at his discretion at any stage after recording
reasons for the same and the accused will be released. "At any stage"
means after appearance of the accused before the Magistrate and

Santhamma Radhamany Amma v. Kunju Pillai, 1981 Cr LJ 247 (Ker) : 1980 Ker LT 393
: 1980 Mad LT (Cri) 448.
Mangal Prasad Jethalal Upadhya v. Thakkar Ananji Runchhoddas, 1983 Cr LJ 309 (Guj)
: 1982 (2) 23 Guj LR 607 : 1982 Guj LH 1032.
S. 258] Power to stop proceedings in certain cases 2855
before pronouncing judgment. The power given under this section has
to be exercised in special or unusual circumstances if the court
considers highly unnecessary to proceed further in the matter, in
which event it will be open to the Magistrate to stop the proceeding
without pronouncing any judgment and to pronounce a judgment of
acquittal if evidence of principal witness has been recorded and in any
other case, to release the accused.1 In a summons case, proceedings
cannot be dropped.2 Accused has valid right to move court to
reconsider his order of summoning and drop the proceedings by
showing lack of sufficient ground.3
(i) Applicable only to summons cases instituted otherwise
than upon complaint.—Section 258 cannot be utilized in respect of
warrant case, but applies only to summons cases instituted otherwise
than upon complaint.4 This section cannot be applied to cases triable
by warrant procedure.5 Where a person is proceeded against under s.
182, I.P.C., for giving false information, the Magistrate has full powers
to stop the proceedings without pronouncing any judgment and may
thereupon acquit or, as the case may be, release the accused, on
receipt of a police report that the information given was true.6
Section 258 applies to a summons case which terminates either in
acquittal or conviction of the accused. An enquiry in a case under s.
107 is not a trial of a summons case and the Magistrate is not entitled
to stop such proceedings under s. 258.7
(ii) "Summons case instituted otherwise than upon
complaint—Section 258 applies to summons cases instituted
otherwise than on a complaint. It does not apply to a case instituted
on a complaint. But an order stopping proceedings in such a case
cannot be treated as an acquittal under s. 256.9 Such an order is a
nullity. Case remains pending and can be revived.10
Where proceedings for an offence under s. 62A, Calcutta Police
Act, (which is a summons case offence) had their origin in a police
report and cognizance had been taken on such report, there can be no
manner of doubt that s. 258 would be attracted." Where, therefore, in
a case charge-sheeted by police, the Police Prosecutor and the
complainant are absent and the Magistrate applies s. 256, and
acquits the accused, the order is wrong and at best the order can be
treated as one under s. 258 of stoppage of the proceedings without
pronouncing any judgment and of acquittal or, as the case may be,
release of the accused.12

1. State of Gujarat v. Sunghar Ibrahim Ladha, 1971 Cr LJ 949 (Guj) ; State of Gujarat v.
Manganlal Gordhandas Mer, 1995 Cr LJ 1581 (Guj).
2. S. and R. Legal Affairs, West Bengal v. Madhablal Mehta, 1974 Cr LJ 1930 (Cal).
3. Ashok Kumar v. State, 1999 (3) Crimes 484 (Raj).
4. 5 Pat 243 : AIR 1926 Pat 292.
5. State of Mysore v. M. Srinivasa, 1973 Cr LJ 741 (Mys).
6. 1 PLT 28 : 21 C r L J 184.
7. 1957 Raj LW 273 : AIR 1957 Raj 352 : 1957 Cr LJ 1316.
8. AIR 1959 Mad 356.
9. 1964 Raj LW 223 : 1964 (2) Cr LJ 459.
10. AIR 1964 Raj 216.
11. 59 CWN 751 : AIR 1956 Cal 247.
12. 1961 (1) Cr LJ 441 : AIR 1961 Tri 12.
2856 Ch. XX— Trial of summons-cases by Magistrates [S. 258

In a summary trial, summons procedure is followed and the

Magistrate can stop the proceeding and acquit the accused in exercise
of the power under s. 258, when he finds that there is no evidence on
the charge is groundless.'
3. Stay of proceedings—When may be ordered.—The wording of
s. 258 is undoubtedly very wide and can cover any set of
circumstances in which Magistrate thinks that the proceedings in a
summons case ought not to be continued any longer. It is, however,
doubtful if the section was intended to be applied in cases in which
there were no special or unusual circumstances which made it
difficult or impossible or even highly inconvenient to proceed in the
normal way under s. 254 and arrive at a finding on the guilt or
innocence of the accused.2
Where the Magistrate comes to the conclusion that no case, not
even a prima fade case, under s. 447, I.P.C., was made out, he is
perfectly justified in stopping the proceedings under s. 258, without
first following the procedure under ss. 251 to 254. The words of s.
239, cannot be read into s. 258, and the Magistrate before releasing
the accused under s. 258, need not hear the accused and the
complainant.3 Where the Magistrate rejected the application to issue
summons for witnesses and then dropped proceedings for non-
attendance of the witnesses, the order was not sustainable.4
4. Effect of order—Not interlocutory.—If the stoppage of the
proceeding is made after recording the evidence of principal
witnesses, the Magistrate will pronounce a judgment of acquittal and
in any other case the Magistrate will release the accused and that
release will have the effect of discharge.
Section 258, empowers the Magistrate to stop the proceedings at
any stage in a summons case without pronouncing the judgment and
the consequences of such stoppage will be acquittal or discharge, as
the case may be. If the proceedings aire stopped after examining the
principal witnesses, the order will be for acquittal and in other cases,
accused will be released which will amount to discharge. Any
proceeding dropped for want of sanction, that is not stopped under
this section will not lead to acquittal or discharge of the accused.5
Where an accused has been acquitted on the stoppage of the
proceedings, s. 300 will bar a second trial for the same offence on the
same facts. But where the accused has been released which has the
effect of discharge, he can be tried again for the same offence with the
consent of the court by which he was discharged or any other court to
which the first-mentioned court is subordinate.6

1. Shaikh Ahmad Hussain v. State of Maharashtra, 1991 Cr LJ 2303 (Bom).

2. AIR 1950 EP 83 .51 PLR 374.
3. 62 Bom LR 499 : AIR 1960 Bom 481.
4. State of Gujarat v. Lohana Prakash Dayalji, 1994 (3) Crimes 1024 (Guj).
5. Ellanda Pratap v. State, 1986 Cr LJ 2108 (AP).
6. Section 300 (5), Cr. P.C. : S. Sankaran v. Inspector Triplicane Range, 1995 Cr LJ 2823
(Mad)
S. 259] Power of Court to convert summons-cases into warrant-cases 2857
It may be noted that the order of stoppage of proceeding under
this section can, by no stretch of imagination, be said to be an
interlocutory order and a revision under s. 397 would lie against such
an order if accused is discharged while an appeal can be maintained if
he is acquitted.'
5. Claim for discharge—Stage.—During the course of
prosecution an officer under Railway Protection Force cannot claim
discharge by claiming that the act was in discharge of official duty,
before framing of charge.2
259. Power of Court to convert summons-cases into
warrant-cases.—When in the course of the trial of a summons-
case relating to an offence punishable with imprisonment for a
term exceeding six months, it appears to the Magistrate that in
the interests of justice, the offence should be tried in
accordance with the procedure for the trial of warrant-cases,
such Magistrate may proceed to re-hear the case in the manner
provided by this Code for the trial of warrant-cases and may
recall any witness who may have been examined.
Synopsis

1. Legislative history, 2857

2. Scope and applicability, 2857
1. Legislative history.—Section 259 is new section.
2. Scope and applicability.—This section empowers tne
Magistrate to convert a summons case into warrant case for the
purpose of trial. The section provides that if in the course of the trial
of a summons case relating to an offence punishable with
imprisonment for a term exceeding six months, it appears to the
Magistrate that in the interest of justice, the offence should be tried as
a warrant case, the Magistrate may re-hear the case in the manner
provided by the Code for the trial of warrant cases, and may recall any
witness who has already been examined. A Magistrate is empowered
to resort to the procedure of a warrant case, in the course of a trial of
the summons case, when according to him, in the interest of justice
the offence should be tried according to the procedure for the trial of
warrant cases. The last clause in the section which provides that such
Magistrate may proceed to re-hear the case in the manner provided by
the Code shows that the provisions in section 259 come into play not
at the inception but in the course of a trial.3

1. State v. Maganlal Gordhandas Mer, 1995 Cr LJ 1581 (Guj) : 1995 (1) Crimes 176 (Guj).
2. Syed Azar Ahmed v. State of Rajasthan, 1997 Cr LJ 1822 (Raj).
3. Ganesh Narain Dangre v. Eknath Hari Thampe, 1978 Cr LJ 1009 (Bom).