A. K. NAYAK, J. ( 1 ) THIS is an appeal by Special Leave under section 378 (4), Cr. P. C. by the appellant Calcutta Municipal Corporation against an order of acquittal dated 14-12-1983, passed by Metropolitan and Municipal Magistrate, 3rd Court, Calcutta, acquitting the accused opposite-party in a case under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act. ( 2 ) A complaint case was brought in the year 1978, by the Food Inspector, Dr. S. N. Mitra in the Court of Metropolitan Magistrate, Calcutta, alleging that the accused opposite-party had exposed for sale for human consumption mustard oil on 5-4-1978, which was found by the Public Analyst to be adulterted one. On process being issued by the Magistrate, the accused persons appeared and were released on bail and the case was fixed thereafter on 19-12-1978 for examination of prosecution witnesses. The accused persons were not examined under section 251, Cr. P. C. According to the appellant usually the Metropolitan Magistrate followed the warrant procedure regarding the trial of the offences punishable under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act. A petition was filed on behalf of the defence for discharging the accused persons under section 245 (2), Cr. P. C. The learned Magistrate without giving an opportunity decided to try the case summarily and the complainant having not appeared acquitted the accused persons under section 256 (1), Cr. P. C. Hence this appeal. ( 3 ) THE order of acquittal passed by the learned Magistrate has been assailed on the ground that the learned Magistrate followed the summons procedure case without examining the accused persons under section 251, Cr. P. C. and therefore committed an error by acquitting the accused persons under section 256 (1), Cr. P. C. without following the procedures contained in sections 262 to 264, Cr. P. C. ( 4 ) IT is an undisputed Position of law that the offences coming under the Prevention of Food Adulteration Act are triable by summary procedure as laid down in section 262, Cr. P. C. and the; procedure for trial in such cases as specified in that section is the procedure to be followed in summons case. There is no dispute, therefore, that. It the offences triable under the Prevention of Food Adulteration Act will be that of a case triable under summons procedure. P. C. and the; procedure for trial in such cases as specified in that section is the procedure to be followed in summons case. There is no dispute, therefore, that. It the offences triable under the Prevention of Food Adulteration Act will be that of a case triable under summons procedure. Such a procedure was followed also in this case. As already stated, the case was filed in the year 1978. Perusal of the order passed by the learned Magistrate will show that prosecution took five adjournments for evidence, but did not produce any witness. This went on for several years till 8-7-1983. Then again since 30-5-1983 neither the complainant nor the Corporation took any steps even to summon the witnesses, though most of the witnesses were employees of the Corporation. Even on the date of passing such order on 14-12-1983, the case was already 5 and half years old and according to the learned Magistrate the only step taken by prosecution was to the petition for adjournment. Under such circumstances, the learned Magistrate observed that the conduct of prosecution showed that they were not willing to proceed with the case, and that they were not at all diligent even to attend the Court. The learned Magistrate was compelled to observe that the Court could not remain an idle spectator under such circumstances and passed the impugned order invoking provision of section 256 (1), Cr. P. C. ( 5 ) THE provisions of section 256 (1), Cr. P. C. provide that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complaint does not appear, the Magistrate shall, notwithstanding anything hereinabove contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. ( 6 ) IT has been contended by Mr. Mihir Roy on behalf of the appellant-Corporation that invoking the provision of section 256 (1), Cr. ( 6 ) IT has been contended by Mr. Mihir Roy on behalf of the appellant-Corporation that invoking the provision of section 256 (1), Cr. P. C. as it has been done by the learned Magistrate to pass such order of acquittal is unwarranted without observing the provisions of section 251, Cr. P. C. In other words, it has been contended that the plea of the accused regarding the accusation stated against them should have been taken, prior to the posting of such case for evidence, and non-compliance of the same will be an illegality for which the order of acquittal passed by the Magistrate should be set aside. Reference has been made in this connection by the learned Advocate to several decisions reported in 1988 Cr. L. J. Orissa, 15581,1986 Cr. L. J. Calcutta, 21102 and 1954 LL. R. , Cal. 3593 The facts of the first two decisions reported in 1988, Cr. L. J. and 1986 Cr. L. J. are entirely distinguishable from the facts of this case and have little bearing on the point raised by the learned Advocate in this particular case. ( 7 ) IT is true that the order of acquittal in a case under section 256, Cr. P. C. should not be passed automatically as a matter of routine on the absence of the complainant. The Court must act with circumspection and apply his discretion in a judicious manner and should not act in an arbitrary and hasty manner to dispose of the matter in the absence of the complainant. In the particular Orissa case it was decided, therefore, that the power under section 256 (1), Cr. P. C. 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. The learned Magistrate in that case was therefore patently wrong in dismissing the complainants petition on an adjourned date on the ground that the complainant was absent on previous date. In the Calcutta case, reported in 1986, Cr. The learned Magistrate in that case was therefore patently wrong in dismissing the complainants petition on an adjourned date on the ground that the complainant was absent on previous date. In the Calcutta case, reported in 1986, Cr. L. J. 2110 (supra), M. R. Mallick, J. observed that the order of acquittal passed under this section was not justified on the first date of appearance of the accused persons when the complainant was found to be absent though the presence of the complainant was not very much necessary on that date, nor the complainant was found to be guilty of any laches. In coming to his decision, the learned Judge also relied upon an earlier Calcutta decision reported in 1983 Cr. L. J. 1538. It was also observed in this connection that the very object of section 256, Cr. P. C. is to see that the complainant does not unnecessarily drag a Criminal Proceeding initiated at his instance which was found to be absent in that particular case. In the instant case we have already seen that long 5 and half years had passed and repeated adjournments had been taken on various grounds by the complainant for production of witnesses. Since 13-5-1983, the complainant did not take any step whatsoever. The prosecution was given the last chance and even on that date neither the complainant nor any of his witnesses was present. Under such circumstances it cannot be said that the prosecution was not at all vigilant in conducting the case and had the only intention to drag it on for years causing harassment to the accused party. The learned Magistrate also observed that the personal attendance of the complainant was also essential to prove the charge against the accused persons. ( 8 ) THE next question is whether such order of acquittal passed under section 256, Cr. P. C. suffers from any infirmity for non-examination accused under section 251-, Cr. P. C. It has been contended by Mr. Roy with reference to a decision of this court reported in A. I. R. 1950, Calcutta, 61 and another in I. L. R. 54 Cal. 359 that observance of the provisions of section 242, Cr. P. C. (251 after Amendment) is a material or inseparable part of trial under Cr. P. C. is a summons case, and noncompliance therewith is an illegality vitiating an order of conviction. 359 that observance of the provisions of section 242, Cr. P. C. (251 after Amendment) is a material or inseparable part of trial under Cr. P. C. is a summons case, and noncompliance therewith is an illegality vitiating an order of conviction. The provisions of section 256, Cr. P. C. do not show anything that such examination is a must prior to passing of any order under section 256, Cr. P. C. Rather it shows such an order can be passed even on the appointed date for appearance of the accused following the service of summons upon them or on any date subsequent thereto to which the hearing may be adjourned, unless of course the learned Magistrate thinks it proper otherwise for any reason to adjourn such hearing or that such personal attendance is not necessary. The obvious reason, as held in those cases is a plea of prejudice to the accused persons for non-compliance thereof. Such question does not arise in the instant case. At the worst it may be considered to be an act of omission in such proceeding which will not vitiate such proceeding. As already stated such order of acquittal under section 256, Cr. P. C. can be passed either on the date of appearance of the accused or on any date subsequent thereto which the hearing may be adjourned. If any authority is needed we may refer to the decision of the Orissa High Court reported in 1980, Cr. L. J. 1023. The question that arose in that case was whether the provisions of section 251, Cr. P. C. is mandatory and since the accusation had never been stated by the learned Magistrate to the accused persons, the trial and consequent conviction could be sustained in law. R. N. Mishra, J. (as then he was Chief Justice of India) on a detailed discussion of law on this point with reference to various decisions of different High Courts and observing that in the absence of prejudice, as the accused in that case had full opportunity to cross-examine the prosecution witnesses, and relying upon the Bench Decision of the Patna High Court, reported in Rageswar Prasad Singh v. Province of Bihar held that such order of conviction was not vitiated in that case. In short, non-compliance with the provisions of section 251, Cr. In short, non-compliance with the provisions of section 251, Cr. P. C. was not found to be fatal as the defence was not prejudiced as they were represented by the lawyers having full opportunity to cross-examine the prosecution witnesses. ( 9 ) IN the instant case, however, such question does not strictly speaking arise as the prosecution did not enter evidence and there is no chance of the accused being prejudiced and as a matter of fact they have been acquitted thereby. The learned. Magistrate had the discretionary power therefore, to act under section 251, Cr. P. C. Moreover, as already stated the case has its own tale to tell. There can be no manner of doubt that the case was being dragged on for years causing obviously harassment to the accused opposite party. ( 10 ) THE learned Magistrate was therefore, perfectly justified in passing the order of acquittal under section 256, Cr. P. C. and find no reason not to sustain such order. ( 11 ) THE result is the appeal fails and the same is dismissed. Appeal dismissed. .