JUDGMENT (ORAL) M.S. Ratnaparkhi, J. - The order passed by the Judicial Magistrate, First Class, Nagpur in Criminal Case No. 3432 of 1984 acquitting the accused under Section 256 of the Code of Criminal Procedure has been challenged in this appeal. 2. The complainant filed a complaint before the Judicial Magistrate, First Class, Nagpur on 16-8-1984. Verification was recorded and subsequently on 13-9-1984 the process under Sections 341 and 351 read with Section 34 of the Indian Penal Code was issued against the accused respondents. It took a lot of time to get the accused, served. Enough to point out at this stage that in between 16-8-1984 and 28-11-1986 there were about 44 adjournments. Practically on all the dates, the complainant was present either in person or at least through his counsel. It is only on few occasions that he had to apply for exemptions through his counsel, which was granted. But such occasions were very few. From the order-sheets dated 22-4-1986 it appears the case was fixed for evidence and 12 adjournments were given by the Court. On some dates both the parties asked for an adjournment. Any how the case was lasted journey to 28-11-1986. On this date neither the complainant nor the accused appeared, nor did their counsel appear. The Court passed the following order: "Complainant and accused absent though called several times. Accused acquitted under Section 256, Code of Criminal Procedure." The order-sheet dated 28-11-1986 reads as follows: "Parties by their counsels. Absent. Order passed on Ex. 1. Case is dismissed. Accused is acquitted. Case closed." The opening part of the order-sheet dated 28-11-1986 shows that the parties were present through their counsel and still the case was dismissed. Neither the endorsement on the complaint, nor in the order-sheet dated 28-11-1986 has it been specifically mentioned that the case, was called at particular time and it was recalled at particular time, though the order on the complaint shows that the case was called several times. In the result the case stood dismissed and the accused acquitted. It also appears, on the very day the complainant filed an application for restoration of the case, but it was promptly disposed of on the same day. The result was that the application for restoration was also rejected. 3. Mr. In the result the case stood dismissed and the accused acquitted. It also appears, on the very day the complainant filed an application for restoration of the case, but it was promptly disposed of on the same day. The result was that the application for restoration was also rejected. 3. Mr. Pendharkar, the learned advocate for the appellant, strenuously urged before me that his client was pursuing the remedy honestly throughout the period of two years. He made efforts to cooperate in the hearing of the matter. He remains present practically for all the dates. However, according to him on 28-11-1986 when the case was called, the client went to seek his advocate and by the time he returned back along with his advocate, he found to his surprise that the case was dismissed and the accused acquitted. These are the allegations made in the appeal memorandum and these allegations are on affirmation. Not only that but according to Mr. Pandharkar, he immediately moved the Court for restoration. We are not concerned here at this stage whether the Court had powers to restore it or not. That point is not germane to this controversy also. Reliance on this circumstance is to show the conduct of the complainant, who had a keen desire to pursue the matter and not to let it go in his default. Mr. Pendharkar invited my attention to Section 256 of the Code of Criminal Procedure which provides for a procedure when the complainant and the accused are absent on the date of hearing. The Magistrate has no doubt a discretion either to dismiss the case or to proceed with the case in the absence of the parties. Normally a discretion is, vested in the Magistrate and proper exercised by him would not be interfered by this Court unless on cogent grounds. What we find in the present case is that as soon as the case was called, efforts were made by the complainant to call his counsel so that the case would proceed forth, but before he could reach the Court along with his counsel, the case was dismissed. Neither the original complaint, nor the order-sheet shows the timings when the case was called. Neither the original complaint, nor the order-sheet shows the timings when the case was called. Looking to the averments made in the appeal memo, the case was called at about 11.15 A.M. and this dismissal order came to be passed before 11-30 A.M. The court could not wait even for 15 minutes for the counsel to appear. 4. Me. Pendharkar strenuously urged before me that when a client approaches the Court for pursuing the legal remedy available to him under the law of the land, he expects justice in the real sense of the term. Justice in the real sense of the term does not permit it to be hampered only by technicalities. As a general proposition none should have any grievance with it. What Mr. Pendharkar pointed out before me was that here is a client who is pursuing his remedy and spending his time and energy continuously for, two years in attending the Court. There was no fault on his part. He could not conduct the case himself; so he went to call his counsel and before he could return back his case was dismissed. According to him, this was not the impartation of justice in the real sense of the term. There is considerable substance in what Mr. Pendharkar says. The record, standing as it is, shows that the order has been very technical. We do not get any sufficient material from the record itself to show that the complainant-appellant was negligent or careless in conducting his matter. 5. Order under Section 256 of the Code of Criminal Procedure is in effect an order of acquittal against which the appeal lies. It is exactly this remedy which is being pursued by the appellant in this case. Mr. Pendharkar invited my attention to the ratio laid down by the Punjab High Court in Prabhu Dayal v. Mudgil1 where in the similar circumstances the Punjab High Court has held that the Magistrate did not apply his mind properly to the requirements which the rule requires before taking resort to the remedy under Section 247 of the Code of Criminal Procedure (The Criminal Procedure Code, 1898 was applicable then). The rules framed by the Punjab High Court required the time of call to be mentioned in the order-sheet before such penal order could be passed. These rules were not followed by the Magistrate and the order came to be passed. The rules framed by the Punjab High Court required the time of call to be mentioned in the order-sheet before such penal order could be passed. These rules were not followed by the Magistrate and the order came to be passed. It is under these circumstances that the order of acquittal was set aside and the case was seat back to the trial Court. Similar observations came to be made by the Delhi High Court in Mohomed Yamin v. Zafar Mohammad2 where the High Court observed that the word "shall” in the proviso to Section 247 is not tantamount to a legislative mandate. The High Court held that the Magistrate has some discretion which has to be used on sound recognised principles. The following observations need to be reproduced: "Realising that punishment of crimes by the State Courts of law and justice serves as a check on the tendency by the private aggrieved parties themselves to take revenge by acts of violence and lawlessness for the actual or supposed wrong considered to have been done to them, and in view of the fact that, in the trials of criminal cases according to our Code, normally there is neither a general provision for a review nor for setting aside dismissals in default, we are disinclined to impute to the Legislature a rigid mandatory intent in enacting Section 247 such as is suggested on behalf of the respondents.”. 6. Looking to the circumstances prevailing in the present case, I do not think that the Magistrate was justified in dismissing the case in the early hours of the day without waiting for the party or its advocate, particularly when the party was pursuing his remedy honestly and sincerely. In these circumstances, the order of acquittal has to be set aside. The appeal has to be allowed and is accordingly allowed. The order of dismissal of the case and the acquittal of the accused is hereby set aside. The Magistrate is directed to proceed with the case according to law. As the case has become pretty old, the Magistrate is directed to dispose of the case according to law before the end of March 1990. Appeal allowed. 1. A.I.R. 1966 Punjab 372. 2. A.I.R. 1968 Delhi 149.