JUDGMENT 1. - Under his order dated March 6, 1976, Judicial Magistrate, First Class, (Railways), Jodhpur, acquitted the accused respondent under Section 256 of the Code of Criminal Procedure because the complainant or his counsel were not present on that day. 2. In short, the case of the prosecution is that a complaint was filed by the appellant in the court of the Judicial Magistrate, Jodhpur, on April 28, 1975, wherein a case was set up that on 13-4-1975 at about 11.30 a.m , the complainant who was a hawker, tried to go to the platform as a train was to arrive but the accused respondent Harikishan, who is Station Master, did not open the gate and did not allow the complainant to go to the platform. The reason given out by the accused is said to be that the complainant has not got himself medically examined and, therefore, he could not be allowed to sell eatables at the platform. The complainant is said to have stated that his medical examination was only due after a year and it was not necessary to get himself medically examined immediately. It was alleged that the accused did not allow the complainant to go to the platform and pushed him. There was further complaint that the accused No. 1, Shri Harikishan, used to take milk etc. from the complainant on credit and when dues were demanded, he did not pay and that is why, he was beaten by the accused. So far accused respondent No. 2 and 3 are concerned, the only allegations are that they remained sitting with accused No 1 at the railway station and enjoyed `Bhang', an intoxicant and belonged to his group. The complainant further set up a case that on 13-4-75, when after the above referred to incident, the complainant was returning, then at about 12.30 all the accused persons attacked him and gave beating to him. Along with the complaint, injury report was also filed by the complainant. The learned Magistrate took cognizance of offence under Section 323 of the Indian Penal Code against the three accused respondents. The case was fixed for the appearance of some of the accused persons but on 7-2-1976, only accused respondent Mangilal was present and the other accused were not present. The learned Magistrate took cognizance of offence under Section 323 of the Indian Penal Code against the three accused respondents. The case was fixed for the appearance of some of the accused persons but on 7-2-1976, only accused respondent Mangilal was present and the other accused were not present. The case was adjourned to 6-3-1976 and on that day, because of the absence of the complainant and his counsel, the learned Magistrate dismissed the complaint and acquitted the accused respondents. 3. I have gone through the judgment of the learned Judicial Magistrate. The learned Magistrate has not cared to go through the provisions of Section 256 of the Code of Criminal Procedure. A look at that section would show that though the court has power to acquit the accused in case the complainant does not appear on the date fixed, but this power should only be exercised in case on that day the complainant's presence is necessary. A look at the proviso to sub-section (2) of Section 256 of the Code of Criminal Procedure would show that where the magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the attendance of the complainant and proceed with the case. It will be clear that the case was fixed for the appearance of some of the accused persons and on 6-3 1976, even if the complainant would not have been present, the case could be proceeded with. The complainant had furnished the necessary particulars for the accused person. Thus, though the order of the learned magistrate cannot be justified, the case is of a very petty nature. The occurrence took place on 13-2-1975, that is, after more than six years ago. Therefore, I would not like to interfere with the order of acquittal. 4. With the above observations, the appeal is dismissed.Appeal dismissed. *******