Judgment The above appeal has been preferred by the appellant against the order passed by the Court of XIII Metropolitan Magistrate, Egmore, Madras on 26.12.1985 in C.C. No.3193 of 1982 ordering the acquittal of both the accused therein, thus absolving them of the charge framed against both for offence punishable under Secs.341, 323, 354 and 509 read with Sec.34 of Indian Penal Code for which the accused stood charged and faced the trial before the said court. 2. The above proceeding had been instituted by the appellant herein, who is the wife of a Deputy Inspector of Police on a private complaint submitted before the court below for the above offences said to have been committed against her by the accused, who are the Sub-Inspector and Inspector of Police respectively, all of whom are said to have been residing adjacent to each other. 3. Though the combination of the above sections themselves throw some light regarding the act complained of, the averments of the complaint submitted by the complainant before the lower court would further contemplate the grave nature of the assault alleged to have been inflicted on the lady complainant, in public, causing not only physical hardship but also subjecting her to humiliation and the mental agony and affliction since the accused, while assaulting her are said to have addressed her as a prostitute further abusing her in filthy and vituperative language. In the course of the said transaction the first accused is said to have further assaulted her with his shoes and the second accused besides twisting her hand, had given a heavy blow on her back, resulting in her blouse and saree being torn and her sacred thali falling to the ground in the midst of the general public. 4. In a case of such grave allegations commencing the above proceedings in March, 1982 and concluding the entire trial in early December, 1985, when all other procedural periphernalise had been completed and the arguments had also been heard besides the written arguments on the part of the complainant having been submitted, posting the case for pronouncing the judgment, the lower court had ordered the acquittal of the accused under Sec.256 of Criminal Procedure Code calling the complainant absent. 5. 5. A perusal of the ‘order sheet for Magistrate's record’ would show that the complainant had been invariably present before the lower court almost for all the hearings, numbering more than fifty spreading for a span of 3 years of more. But on the part of the accused, they, besides being absent on many occasions on petitions through their counsel many other times even non-bailable warrants had been issued by the court below, since neither the accused nor their counsel representing on their behalf turned out. In fact it is only recalling the non-bailable warrant issued against the second accused on 2.12.1995, the above case had been posted for judgment to be delivered on 16.12.1985, when in the complainant/appellant was present but fact, since the lower court was not ready with the judgment, suo motu the above case had been adjourned to 26.12.1985 by the Magistrate for delivery of the judgment. 6. It is the irony of fate that the appellant who used to be very prompt throughout in her appearance before the lower court reportedly due to ill-health was not able to attend the court below on 26.12.1985 when me above matter got posted only to deliver the Judgment which was purely an act with which only the court was concerned. But the lower court failing to deliver the Judgment, but calling the appellant absent ordered the acquittal of both the accused under Sec.256 of the Code of Criminal Procedure. Offended and aggrieved at the bottom of her heard against the one sentence order passed by the court below without delivering the Judgment in the case which was posted for delivering the Judgment, ordered the acquittal of the respondents against which the appellant had preferred the above appeal. 7. Offended and aggrieved at the bottom of her heard against the one sentence order passed by the court below without delivering the Judgment in the case which was posted for delivering the Judgment, ordered the acquittal of the respondents against which the appellant had preferred the above appeal. 7. The appellant's counsel Mr.Venkataraman would be categorical and emphatic in his argument that the term ‘hearing’ as employed in the Section has nothing to do with the ‘delivery of Judgment’ when for the only purpose of delivering the Judgment the case got posted on 16.12.1985 and again on 26.12.1985 and the absence on the part of the complainant on such day would not in any manner give rise to the dismissal of the very complainant and to order the acquittal of the accused under Sec.256 of Crl.P.C. The ultimate aim of the Magistrate must be to deliver the judgment on merits in appreciation of the evidence both oral and documentary and in consideration of the facts and circumstances of the case and ultimately applying the position of law in the context of the given case thus giving paramount importance to the cause of justice and fair play. It is undesirable to register the acquittal of the accused taking shelter under Sec.256 of Crl.P.C. at that stage. In the given case, the trial having been completed and the arguments of both sides having been heard and the matter having been reserved for only judgment to be delivered the lower court should not have resorted to adopt the easy method of disposing the case in which the trial had been conducted spreading over a period of 3 1/2 years and on conclusion of trial at a time when the same got posted for judgment. 8. The further argument of the counsel for the appellant would ranger to the extent that the trial court's order of acquittal under Sec.256 of Crl.P.C. is violative of the mandatory provisions of Sec.255 of Crl.P.C. which would warrant the Magistrate to deliver the Judgment once he had finished recording the evidence as referred to in Sec.254 of Crl.P.C. But this argument would fall to the ground in the teeth of the wording of the Sec.256. ‘Notwithstanding anything herein before contained’ meaning thereby irrespective of anything contained in the previous sections of the chapter. ‘Notwithstanding anything herein before contained’ meaning thereby irrespective of anything contained in the previous sections of the chapter. Hence it is clear that Sec.256 has overriding effect on what is contained in the previous sections such as one brought forth by the appellant. 9. It is pertinent to note in the circumstances prevalent in the instant case, to think of the object of the Legislature in inserting the above provision of law into the Code. Definitely the framers of law would not have thought of the arbitrary exercise of power by the Magistrates in the event the complainant is called absent, to order acquittal of the accused at that juncture. It is also relevant to consider that what is stated in the proviso to Sec.256 of Crl.P.C. wherein it is clearly stated that “where the Magistrate is of the opinion that the personal attendance of the complaint is not necessary, the Magistrate may dispense with his attendance and proceed with the case.” Hence, the expectation of law is that the Magistrate. conducting the trial on a private complaint without immediately having recourse to order the acquittal of the accused in me event of the absence of the complainant in exercise of his power enshrined under Sub-sec.(1) of Sec.256 of Crl.P.C. He should analyse the gravity and nature of the case in hand, the stage of the case and ultimately the consequences that would follow by ordering such acquittal of the accused in the circumstances that are prevailing then. Only not to arrive at the drastic conclusion the Magistrates are also given the powers to dispense with the personal attendance of the complainant as it is made clear in the proviso to the said consequences. 10. The learned counsel for the appellant would also cited a judgment from the Madras Law weekly in Mohideen Batch v. Mahaomia Sahib Mohideen Batch v. Mahaomia Sahib, 1933 M. W.N. 203 wherein it has been ruled that ‘where a case is posted for judgment and the complainant was found absent on that day, the court acquitted the accused under Sec.247 of Crl.P.C. (corresponding to the present Sec.256 of Crl.P.C). In revision it was held that the order of the Magistrate was wrong, Sec.247 (256 of Crl.P.C. can only be applied when the case is adjourned for hearing. In revision it was held that the order of the Magistrate was wrong, Sec.247 (256 of Crl.P.C. can only be applied when the case is adjourned for hearing. Hence the question of acquitting the accused taking shelter under Sec.256 of Crl.P.C. is quite illegal and cannot be done. The present appeal has been preferred on such ground that when the case was only adjourned for judgment and that mere delivery of judgment not being part of the trial, and the adjournment formerly delivering judgment could not be said to be an adjournment for hearing.” 11. In the circumstances of the case at stage the trial Magistrate in consideration of the facts and the evidence sent forth could have either delivered the judgment in the absence of the complainant if he was ready with the same to be delivered or he could have adjourned the case to some other date for delivering judgment if he was not ready with the judgment, since the paramount consideration of law is to do justice on finality of decision in full consideration of the evidence placed before the court in accordance with law. But without having a mind to go into such vital aspects of the case and losing sight of the fact that the complaint had been prompt in her appearance before the trial court in all 50 hearings there before and only on the fateful day on account of ill-health she could not appear before the court to get justice on merits in her hard fought case, which had been posted for judgment, that day. 12. The trial Magistrate had no mind even to read the latter part of the section i.e., the proviso made under Sec.256 of Crl.P.C. which is quite explicit in its meaning, while Sub-sec.(1) of Sec.256 of Crl.P.C. lays down the legal rule that in a complaint case, the complainant must be present in court on every hearing. The proviso indicates the exceptions to this general rule when the prosecution may be allowed by the court to continue without the personal presence of the complainant. There are: (a) where the complainant is represented by a pleader or by the officer conducting the prosecution, or (b) Where the Magistrate is of opinion that the personal attendance of the complainant is not necessary. There are: (a) where the complainant is represented by a pleader or by the officer conducting the prosecution, or (b) Where the Magistrate is of opinion that the personal attendance of the complainant is not necessary. It is to be noted that the contingencies mentioned in proviso exempt the complainant from personal appearance while under the latter part of the Sub-sec.(1) there is no exemption. The Magistrate can merely grant an adjournment to enable the complainant to appear on another date. The words “where the personal attendance of the complainant is not necessary.” Introduced by 1955 Amendment leave vide discretion with the Magistrate to dispense with the personal presence of the complaint and to continue the proceedings in his absence. By reason of the words “when the complainant is absent an order of acquittal automatically.” Chinnan v. Chendramma Chinnan v. Chendramma, A.I.R. 1963 Orissa. 93; Soral The Magistrate must in every such case consider whether the personal presence of the complainant was necessary on that day having regard to the stage in which the proceeding is. Thus, it would not be proper for the Magistrate to acquit the accused for the absence of the complainant, in the following cases inter alia. (i) where all evidence on behalf of the complainant has been completed and evidence on behalf of the accused was proceeding; (ii) Where there were other circumstances owing to which the trial court could not proceed even if the complainant was present on that day; (iii) The usual case where the personal attendance of the complainant is dispensed with is where the complainant is an artificial person such a company, a statutory body like a municipal committee. In such cases, the complainant may appear through its officer duly authorised., (iv) where the complaint is made by a court or a public servant because in such cases, examination of the complainant is exempted by Sec.200, proviso (a). 13. But without adopting any of the above norms of law, the learned Magistrate had acted in utter disregard and without application of the legal mind, as a result of which he had bluntly ordered the acquittal of the accused. On the contrary, in the above circumstances either he could have delivered the judgment on 26.12.1985 or at least would have adjourned the case for some other date for the same purpose. On the contrary, in the above circumstances either he could have delivered the judgment on 26.12.1985 or at least would have adjourned the case for some other date for the same purpose. It is undesirable on the part of the Magistrate to have abruptly ordered the acquittal of the accused simply forgetting the duties and high responsibilities cast on him in a case of vital importance in which the only part that was to be complied with was delivering the judgment on the part of the Magistrate and nothing else. The absence of the complainant cannot in any manner deter the Magistrate from performing his duties and for the absence on the part of the complainant on the date of delivering the judgment registering the acquittal of the accused is highly disserted and discredited. 14. The order passed by the Magistrate concerned is neither legal nor acceptable since the same has not been passed in realisation of his legal duties and responsibilities in protecting the genuine interests of parties. Needless to point out that if such slipshod orders are left unchecked the public faith and confidence reposed in the Judiciary will be lost. Hence, in the above circumstances, I am left with no option, but to interfere with the order of the Magistrate in the manner hereinafter mentioned. 15. In result, the above appeal is allowed, setting aside the order passed by the XIII Metropolitan Magistrate, Egmore, Madras in C.C. No.3193 of 1982 dated 26.12.1985. However, the matter is remanded back to the same Magistrate for delivering the judgment on merit in full consideration of the facts and circumstances encircling the entire case and in appreciation of the evidence let in by both the parties and to dispose of the above matter in accordance with law. B.S.-----Appeal allowed.