JUDGMENT M.S. Ratnaparkhi, J. - A complaint was filed by the present appellant before the Judicial Magistrate, First Class, Umrer on 2.7.1984. Verification came to be recorded on 5.10.1984. The learned Magistrate asked the Police to enquire and report. It appears that the report was never received. The Magistrate then called upon the complainant to examine his witnesses before issuing the process. The evidence was recorded on 25.12.1984. On 4.1.1985 the Magistrate registered the complaint and issued a process under sections 427 and 352 of the Indian Penal Code against the accused. The accused put in their appearance for the first time on 4.2.1985 and furnished the bails. On 4.7.1985 the case was adjourned for explaining the particular to the accused. It was again adjourned to 2.5.1986 and then to 1.10.1986 for the same purpose i.e. explaining the particulars to the accused. When the case was called on 1.10.1986 the complainant and his counsel remained absent. The accused also remained absent. However, the counsel for the accused filed an application for exemption which was granted by the trial Court. The trial court then passed the order below Exhibit-I dismissing the complaint for want of prosecution and further directing the discharge of the accused. 2. This order was challenged before the Sessions Judge, Nagpur in Criminal Revision No. 1979 of 1986. The learned Sessions Judge by his order dated 16.4.1987 held that it was after all a summons case and though the Magistrate directed discharge of the accused under section 256 that discharge virtually amounted to acquittal and, therefore, no revision lay against the order of acquittal as the remedy of appeal was provided. The revision thus came to be dismissed on 16.4.87. It is against this order of the learned Sessions Judge, Nagpur that the present criminal appeal has been filed. 3. When this appeal came up for hearing before me there was no complaint that the appeal was barred by limitation. What was urged before me by the learned counsel for the appellant is that it is only on 4.8.1985 that the Magistrate took cognizance of the case and issued a process. In pursuance of this summons the accused put in their appearance on 4.2.1985 and furnished the bail bonds. Then the case was adjourned thrice i.e. on 4.1.1985, 4.2.1985 and 2.5.1986 for explaining the particulars to the accused. In pursuance of this summons the accused put in their appearance on 4.2.1985 and furnished the bail bonds. Then the case was adjourned thrice i.e. on 4.1.1985, 4.2.1985 and 2.5.1986 for explaining the particulars to the accused. It was again adjourned to 1.10.1986 for the same purpose, namely, explaining the particulars to the accused. Explaining the particulars to the accused is the stage before commencement of the trial in summons case. Unless particulars are explained and plea of the accused is recorded, there cannot be any hearing of the matter. I am specifically pointing out this because what was sought to be urged was that the case was not fixed for hearing on 1.10.1986 when the Magistrate dismissed the complaint and discharged the accused. As the record stands, the case was adjourned to 1.10.1986 only for recording the particulars of the offence to the accused and nothing also. It was definitely not for hearing. 4. What is canvassed before me is that when the case was not adjourned for hearing, the learned Magistrate could not have taken the shelter under section 256 (1) of the Code of Criminal Procedure. The provisions of that section are applicable only when the case is fixed for evidence. There is considerable force in this argument. Reliance was also placed on the principle laid down in Agricultural Produce Market Committee, Raichur v. C.S. Tandur Bros.1 wherein it was observed: "The examination of the ingredients of section 256 of the new Code as a whole i.e. including the proviso, makes it abundantly clear that while passing an order of acquittal under section 2560) (main provision) of the new Code, the Court has to bear in mind the ingredients of the proviso to it also. The main provision applies when the case is posted to a date appointed for the appearance of the accused or any day subsequent thereto which the case may be adjourned for hearing. Even then the Magistrate has to, on exercising his discretion, record that there is no good reason for which it would be proper to adjourn the hearing of the case to some other day." 5. In the above said ruling the accused did put in their appearance initially, but thereafter one accused remained absent and the warrant was issued against him. The case was adjourned for return of the warrant. The case was ultimately adjounred to 22.7.1978. In the above said ruling the accused did put in their appearance initially, but thereafter one accused remained absent and the warrant was issued against him. The case was adjourned for return of the warrant. The case was ultimately adjounred to 22.7.1978. On the background the Court observed: "Hence, it follows that adjournment to 21.8.78 was also for recording the plea of the accused. Though recording of the plea of the accused may be considered as part of the process of hearing of the case, a Magistrate is at liberty to split up the process of hearing as recording of plea and recording of evidence. Therefore, 21.8.1978 cannot be regarded as a date fixed for hearing of the case. Hence, the main provision in section 256(1) of the new Code was not at all applicable to the facts and circumstances of the case, and as such the Chief Judicial Magistrate was not right in applying the said provision and holding that because of the absence of the complainant and because there was no valid reason for adjourning the case, the 1. 1981 Crl. L.J. 463. accused were entitled to be acquitted, and passing the order of acquittal". 6. The facts of the present case are exactly parallel. The present case was adjourned from time to time for explaining the particulars of the offence to the accused and it was never fixed for hearing. It could not be fixed for hearing unless the plea of the accused was recorded. In these circumstances, it cannot be said that the Magistrate was justified in dismissing the complaint and acquitting the accused. 7. The order passed by the Magistrate is, therefore, wrong and it needs to be corrected at the hands of this Court with the result that the appeal is allowed. The order passed by the learned Magistrate on 8.10.1986 discharging the accused is hereby quashed. The Magistrate is directed to proceed with the case and decide it according to law. Appeal dismissed.