JUDGMENT 1. - This is an appeal by the State under Sec. 378(3) of the Code of Criminal Procedure against the judgment of the learned Munsif and Judicial Magistrate, Nawa dated October 23, 1980 by which, the learned Magistrate dismissed the complaint under Section 256(1) of the Code of Criminal Procedure and acquitted the accused-respondent of the offence under Section 4(2) of the Rajasthan Prohibition Act, 1969 (hereinafter referred to as the Act). 2. On March 17, 1979, Bhawanisingh, Patrolling Officer, Nagaur, raided the house of the accused-respondent and liquor was found in Amritdan which was berried in the kitchen. A sample was taken which was sealed on the spot and was sent to the Chemical Examiner who under his report dated August 31, 1979, reported that the sample was liquor and contained 15.17 UP ethal alcohol. A complaint was filed against the accused respondent in the court of the learned Magistrate and the statements of Pabudansingh, Rudmal and Fatehsingh were recorded. Some documents were also exhibited. On October 23, 1980, the learned Magistrate dismissed the complaint under Sec. 256(1) of the Code of Criminal Procedure in the absence of Excise Inspector and the Assistant Public Prosecutor and acquitted the accused. 3. The case was posted for the evidence of the witnesses of the prosecution. On that date, namely, on October 23, 1978, neither the witnesses were present nor the Assistant Public Prosecutor was present. An application was filed by Shri Bhawanisingh that on that date, he was busy in Pali and, therefore, will not be able to appear to give his statement and, therefore, some other date should be given. This application was produced by Narender Singh, an officer of the Excise Department, who was present in some other case. 4. An offence under Section 4(2) of the Act is punishable with imprisonment which may extend to two years and with fine which may extend to two thousand rupees. Earlier, an offence under Section 4(1) of the Act was so punishable but the words two years were substituted by three years so far as the offence under sub-section (1) of Section 4 of the Act was concerned. Earlier, an offence under Section 4(1) of the Act was so punishable but the words two years were substituted by three years so far as the offence under sub-section (1) of Section 4 of the Act was concerned. It was done by Sec 2(1) of the Rajasthan Prohibition (Amendment) Act, 1976 (Act No. XXIX of 1976) vide notification No. F.l(28) Vidhi 76 dated 28 4.1976 published in Rajasthan Gazette Extraordinary Part IV (a), dated 28 4 1976 pp 85 and 86. Thus, even after the amendment as aforesaid, an offence under sub-section (2) of Section 4 of the Act continued to be punishable with imprisonment which may extend to two years and with fine which may extend to two thousand rupees. Section 25 of the Act makes an offence under Section 4 of the Act as cognizable and the provisions of the Code of Criminal Procedure, 1973, with respect to cognizable offences, as far as may be, apply to them. By the Amending Act No. XXIX of 1976, Section 25A was introduced and as per it, any offence under Section 4 or 5 of Act was made non-bailable. Thus, though the offence under-Section 4(2) of the Act is cognizable and non-bailable, but as per Section 66 of the Act, save as otherwise expressly provided in the Act, nothing contained therein effects the operation of the Code of Criminal Procedure, 1973. Thus, the provisions of the Code of Criminal Procedure, 1973, are applicable, save as otherwise expressly provided in the Act. A warrant case has been defined under Sec. 2(x) of the Code of Criminal Procedure, 1973 to mean a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Summons case has been defined in Section 2(w) of the Code as a case relating to an offence, and not being a warrant case. Thus, an offence under Section 4(2) of the Act, being punishable with imprisonment of two years, that is imprisonment Dot exceeding two years, is a summons case. Therefore, the provisions of Sec. 256(1) of the Code of Criminal Prosecutor, 1973, will apply. It appears that the Public Procedure, who drafted the application for leave to appeal, was under an impression that by the Amending Act No. XXIX of 1976, the wordstwo yearsin sub-section (2) of Section 4 of the Act were also substituted by three years. Therefore, the provisions of Sec. 256(1) of the Code of Criminal Prosecutor, 1973, will apply. It appears that the Public Procedure, who drafted the application for leave to appeal, was under an impression that by the Amending Act No. XXIX of 1976, the wordstwo yearsin sub-section (2) of Section 4 of the Act were also substituted by three years. This impression was not correct and perhaps was gained without seeing the relevant amendment. Be that as it may, it can be said that an offence under Section 4(2) of the Act is triable as summons case. 5. Thus, in the absence of the complainant, the learned Magistrate could have acquitted the accused. But the question is as to whether the discretion was exercised by the learned Magistrate judicially or arbitrarily. It is well settled that all discretion's vested in a judicial or quasi judicial authority are to be exercised on sound principles and not arbitrarily. Under Section 256, sub-section (1) of the Code of Criminal Procedure, no doubt, generally in the absence of the complainant, the learned Magistrate has to acquit the accused but the provisions of sub-section (1) are subject to its proviso. The proviso requires that where the complainant who is represented by a pleader or by the officer conducting the prosecution or that the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he may dispense with the attendance and proceed with the case. In the instant case, the prosecution was being conducted by the Assistant Public Prosecutor (Excite). The date was fixed for the statement of Bhawani Singh, the Excise Inspector who had already been examined, the other evidence also having been recorded. Bhawanisingh could not be present as he had to appear in Pali in some important matter and he had informed about this fact through another officer to the learned Magistrate. It is well known that the Assistant Public Prosecutors (Excise) are appointed for more than one court and generally, the dates are fixed for taking excise cases so that it may facilitate the appearance of the Assistant Public Prosecutor (Excise). It is well known that the Assistant Public Prosecutors (Excise) are appointed for more than one court and generally, the dates are fixed for taking excise cases so that it may facilitate the appearance of the Assistant Public Prosecutor (Excise). This Court in Johrilal v. Ramjilal (ILR (1964) XIV Raj 898) , while dealing with Section 247 of the Code of Criminal Procedure, 1898, which corresponds to Section 256 of the Code of Criminal Procedure, 1973, observed that it is not intended to serve as a short cut for the trial courts to dismiss cases by snap judgments. The power to dismiss the case is undoubtedly there when the complainant in a case instituted on a complaint is absent in a sun mouse case, but that power must be judicially exercised; and it must be seen and considered having regard to the circumstances of a given case whether the presence of the complainant was essential on that date to proceed with the case or it could be dispensed with. In that case, though the complainant was not present, his counsel was present. Two witnesses were summoned for that date and the complainant had furnished the requisite process fee. But on the date fixed, the learned Magistrate dismissed the case and acquitted the accused, in the absence of the complainant. 6. Before the Criminal Procedure Code Amendment Act 26 of 1955, the proviso under Sec. 256(2) stood as be low,- "Provided that where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance and proceed with the case." After the amendment by the Criminal Procedure Code Amendment Act, 26 of 1955, the proviso was as follows,- "Provided that where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case." In previse to Section 256(1), it appears that the provisions of the earlier proviso as well as the proviso amended by Act 26 of 1955 were incorporated. The benefit of the proviso is available to all complainants whether represented by a pleader or by an officer conducting the prosecution or the cases where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary. The benefit of the proviso is available to all complainants whether represented by a pleader or by an officer conducting the prosecution or the cases where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary. In the instant case, though the complainant was not present and the case was fixed for the statement of Bhawanisingh but Bhawanisingh was busy in Government duty somewhere else and an information through some officer had been furnished to the court. He being the only witness who remained to be examined, even if the complainant was not present or the officer conducting the prosecution could have been present, the proceedings could not be carried on. Therefore, in the instant case, when evidence of all the witnesses had been recorded and only Bhawanisingh remained to be examined, it was not a sound exercise of the discretion by the learned Magistrate to have dismissed the complainant under Section 256(1) of the Cade of Criminal Procedure and acquit the accused respondent. 7. In the result, I allow this State appeal, set aside the judgment of the learned Magistrate acquitting the accused respondent of the charge u/s. 4(2) of the Act and direct the learned Magistrate to restore the case to its original number and after notice to the accused-respondent, decide it afresh in the light of the observations made above.Appeal Allowed. *******