JUDGMENT : Durga Prasanna Choudhury, J. 1. The appellant assails the order dated 10.6.1991 passed by learned Judicial Magistrate First Class, Jeypore in ICC No. 84 of 1987 wherein the Court below has acquitted the respondent under section 256(1), Cr.P.C. FACTS 2. The backdrop of the case of the complainant is that respondent-editor-publisher-printer of newspaper "Banamani" which is printed and circulated every fortnight. The appellant who is the complainant of the Court below, is in a dignified position in the society. His all brothers are Doctors, Engineers and Advocates. The complainant has business in Rayagada, the then undivided district of Koraput. The complainant being the Director of Gas Company at Jeypore has the respectable position in the society. He is also life Member of Bhubaneswar Club, Bhubaneswar and Rotary Club, Jeypore. It is the further case of the complainant that complainant is wholesale dealer in foreign liquor under the liquor licence at Jeypore and Rayagada. He being the licensee of foreign liquor, has to follow provisions under Excise Manual and at no point of time he was defaulter before the Excise Department. 3. It is alleged, inter alia, that the respondent being the editor of the newspaper "Banamani" published a news item on 15.8.1987 under the heading "Bhejal Mada Karabarare Amar Sahoonka Bhumika". Under that title respondent published stories imputing the character of the complainant. It is averred that the respondent has published that the complainant was involved in illegal liquor business being connived with Excise Inspector. Not only the news item spoiled the future but also defamed the business of the complainant by alleging that foreign liquor shop No. 7 of Jeypore Town which was situated at Dhapaguda, now under the process of being shifted to the place being managed by the complainant. Complainant averred that the entire allegations made in the newspaper are false and it is published just to tarnish the image of the complainant in society. So the complainant filed a complaint to take cognizance of the offence under sections 500, 501 and 502 I.P.C. against the respondent-accused person. Learned Magistrate after taking cognizance directed respondent to face trial. 4. After appearance of the respondent, prosecution witnesses were examined, statement of accused was recorded. During defence stage D.W.1 & 2 were examined, cross-examined. After examination and cross-examination of D.W.2 was over, complainant filed petition to recall D.W.2 for further cross-examination and it was allowed. Learned Magistrate after taking cognizance directed respondent to face trial. 4. After appearance of the respondent, prosecution witnesses were examined, statement of accused was recorded. During defence stage D.W.1 & 2 were examined, cross-examined. After examination and cross-examination of D.W.2 was over, complainant filed petition to recall D.W.2 for further cross-examination and it was allowed. While the matter stood thus, learned Court below without going to the status of the case directed the prosecution to produce the witnesses for hearing fixing the date to 18.12.1990 for taking step by the complainant to procure attendance of P.Ws. for further hearing. On 5.6.1991 the complainant and his Advocate remained absent. No step was taken by them but the Presiding Officer was availing vacation for which the matter was deferred to 10.6.1991 for further orders. On the later date also complainant and his witnesses remained absent, but the accused was acquitted under section 256(1) of the Cr.P.C. for their absence on 5.6.91. So the petitioner challenges the said order of acquittal in this appeal. Hence the appeal. 5. The plea of the respondent as revealed from the cross-examination made to the P.Ws. is about total denial to the charge made against him. SUBMISSION 6. It is submitted by the learned counsel for the appellant that the order passed by the learned court below is against the principle of law. According to him learned Magistrate has erred in law by acquitting the accused without following the necessary procedure to be followed before acquitting the accused under section 256, Cr.P.C. He submitted that after the hearing reached the defence stage, there is no occasion to return to the previous stage of prosecution. When D.W.2 was to be further cross-examined, the order of the learned Magistrate directing the complainant to produce P.Ws. is absolutely erroneous and without application of mind. He further submitted that in the event of non-appearance of complainant for hearing learned Magistrate should have closed the case or should have made further enquiry or allowed to issue notice to defence witness to appear but ought not to have acquitted to the accused for the reasons unknown to law. He further submitted that the court below has committed error by throwing the burden on the appellant instead of going through the previous order, where it has been mentioned that the Presiding Officer was absent. He further submitted that the court below has committed error by throwing the burden on the appellant instead of going through the previous order, where it has been mentioned that the Presiding Officer was absent. For the absence of the Presiding Officer the party should not be punished. On the whole he submitted that the impugned order acquitting the accused is against the principle of natural justice, and is irregular and unjust for which the same should be set aside and proceed to award even justice. 7. Learned counsel for the respondent submitted that the order of the learned Magistrate is not unjust because the complainant and his Advocate were absent on the date when the date fixed for hearing. According to him, under section 256 (1) Cr.P.C. when the case is fixed for hearing, on the same day if the complainant or his Advocate remained absent, it is the prerogative of the concerned Court to pass the order of acquittal as the complainant and his Advocates remained absent. He further stated that on the date of hearing of the case when the complainant and his Advocate remained absent, the Court had no means to act different but to record an acquittal of the accused. He submitted that the order of the learned Magistrate should be affirmed by dismissing the appeal. POINTS FOR DETERMINATION 8. In this appeal only question arises: "Whether the impugned order of acquittal passed under section 256(1) Cr.P.C. is legal and proper?" DISCUSSIONS 9. It is better to place the relevant order sheet where the defence was directed to produce D.W.2 for cross-examination by the complainant. The order sheet dated 10.9.1990 is placed below. "10.09.1990 Counsel for both the sides present. The counsel for the complainant filed a petition to recall the D.W.2. Copy of the said petition served by the opposite party. Heard on the petition. The counsel for the accused fairly conceded to recall the D.W.2. Hence the said petition is allowed. The defence directed to produce the D.W.2 for cross-examination by the complainant. Heard on the petition filed by the accused. The said petition is allowed. The defence is directed to procure the attendance of D.W.2 for cross-examination on 10.10.1990. Accused as before. The counsel for the accused fairly conceded to recall the D.W.2. Hence the said petition is allowed. The defence directed to produce the D.W.2 for cross-examination by the complainant. Heard on the petition filed by the accused. The said petition is allowed. The defence is directed to procure the attendance of D.W.2 for cross-examination on 10.10.1990. Accused as before. Sd/- J.M.F.C." Thereafter the case was transferred to the learned J.M.S.C. and again it was restored to the file of learned J.M.F.C., Jeypore on 26.11.1990 but on 28.11.1990 learned J.M.F.C. passed the order fixing the case to 18.12.1990 for re-cross-examination of D.W.2. For better appreciation the order dated 18.12.1990 is placed below:-- "The accd. is present. The advocate for the comlt. files written process. Issue summon to P.Ws. fixing 7.2.91 for trial. Accused is as before. (Dictated) Sd/- J.M.F.C." 10. The aforesaid order shows that the date was fixed to 7.2.1991 for examination of P.Ws. Accordingly the matter went on, on the background that the witness for the complainant is to be examined. For better clarification the order dated 30.3.1991 and subsequent orders dated 5.6.1991 and 10.6.1991 as available on record are produced for better appreciation. "30.3.1991 On 29.3.1991 is being holiday. The record is put up today. To-day is clearance day. Both the parties and one witness is present. Call on 5.6.1991 for hearing. Complainant to take steps for appearance of other witnesses within seven days. Accused is as before Sd/- J.M.F.C. 5.6.1991 P.O. is on Summer Vacation. Accused is present. The compliant and his Advocate are also absent. No steps taken on behalf of the complainant. Put up on 10.6.1991 for further orders before the P.O. Accused is as before. (Dictated) Sd/- J.M.F.C.I/C 10.6.1991 Accused is present. The complainant and his Advocate are also absent today. Perused the order dated 5.6.1991. The complaint was absent on 5.6.1991 and was taken no steps on behalf of him on which date the case was posted for hearing. Hence the accused is acquitted under section 256 Cr.P.C. and set at his liberty forthwith. Accused is as before. (Dictated) Sd/- J.M.F.C." 19.7.1991 The record is put up before me, since the petition is filed on behalf of the complaint. One affidavit, is also filed on behalf of the complainant. It is prayed in the petition to restore the case and to take up further trial. Accused is as before. (Dictated) Sd/- J.M.F.C." 19.7.1991 The record is put up before me, since the petition is filed on behalf of the complaint. One affidavit, is also filed on behalf of the complainant. It is prayed in the petition to restore the case and to take up further trial. But on perusal of the order sheet, it is seen that on 5.6.1991, the complainant and his Advocate were absent on that day. P.O. was availing summer vacation, no final order was passed and the record was posted to 10.6.1991 on that day also neither the complainant nor the Advocate of the complainant turned up. Hence, the final order passed on that day. It was ordered that since no steps taken on behalf of the complainant, the accused is acquitted under section 256(1) of Cr.P.C. And at this stage even though the record is in this Court before the consignment, I have no jurisdiction to pass any order on the petition filed on behalf of the complainant. Hence, the petition is rejected. (Dictated) Sd/- J.M.F.C." 11. From the aforesaid order, it is abundantly clear that the concerned court went on adjourning the case for hearing on the side of the complainant, although after the case of the complainant closed, defence has already adduced two witnesses(D.Ws.1 &2). At the stage of defence petitions were filed by the complainant to re-cross-examine D.W.2. 12. Section 256, Cr.P.C. states:-- "256. Non- appearance or death of complainant. (1) 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 complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore 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. (2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." Thus the word "hearing" in a summons case as appears in Section 256, Cr.P.C. has to be understood in a proper perspective. On this score position in law is no more res integra. 13. It is reported in the case of S. Anand v. Vasumathi Chandrasekhar in Criminal (Appeal) No. 311 of 2008, AIR 2008 SC 1296 ], where their Lordships of the Apex Court held:-- "10. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of complainant have already been examined. 11. The date was fixed for examining the defence witnesses. Appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence. 12. The accused was entitled to file an application under Section 311 of the Code of Criminal Procedure. Such an application was required to be considered and disposed of by the learned Magistrate. We have noticed hereinbefore that the complainant did not examine herself as a witness. She was sought to be summoned again for cross-examination. The said prayer has not yet been allowed. But, that would not mean that on that ground the court would exercise its discretionary jurisdiction under Section 256 of the Code of Criminal Procedure at that stage or the defence would not examine his witnesses. 13. Presence of the complainant or her lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witnesses examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was absolutely necessary. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court was required to pass a judgment on merit of the matter." 14. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court was required to pass a judgment on merit of the matter." 14. With due respect to the decision, it must be observed that the word "hearing" as available in Section 256, Cr.P.C. must be read with reference to the stage where the presence of complainant or his Advocate is absolutely necessary. It is clear that the presence of complainant would have been more necessary at the time of adducing evidence from the side of the complainant. On the other hand, the word "hearing" should be confined to the stage of prosecution or the complainant to adduce the evidence inasmuch as it is prosecution to prove charge beyond all shadow of doubts and jurisprudence makes it clear that accused is presumed to be innocent until contrary is proved. When the case of the prosecution is closed as happened in this case and at the stage of defence the D.Ws.1 and 2 have been examined and cross-examined, further cross-examination by the complainant is an option where the presence of complainant or his Advocate were not absolutely necessary resulting acquittal of the accused. So the presence of the complainant or his Advocate would have been absolutely necessary at the stage of the adducing evidence by the complainant. 15. It is reported in Associated Cement Co. Ltd. v. Keshvanand, (1998) 1 SCC 687 where Their Lordships observed para-17: "17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice." 16. With due respect to the decision, it is very much clear that the court has to exercise discretion by applying judicial mind and cannot mechanically pass the order of acquittal under section 256(1), Cr. P. C. in any stage of hearing of the summons case in the event of absence of complainant or his Advocate. In the aforesaid decision it is observed by Apex Court that in all dates the presence of complainant and his Advocate is not mandatory requiring action to be taken against the complainant or affecting his case. On the other hand, the accused cannot obtain the order of acquittal to sub-serve justice. 17. It appears from the order dated 5.6.1991 the complainant and his Advocate were absent. The Presiding Officer of the court was also absent. The Magistrate in charge of that Court adjourned the case to pass further order by the Presiding Officer in seisin of the matter fixing date on 10.6.1991. It is the duty of the court remaining in charge of another court to apply the mind instead of passing order mechanically. Similarly, the court in seisin over the matter also passed order on 10.6.1991 merely because of absence of complainant and his Advocate and thereby the affecting rights of the parties without going to the previous orders. He ought to have gone through the previous order dated 5.6.1991 when he was absent by availing summer vacation. Similarly, the court in seisin over the matter also passed order on 10.6.1991 merely because of absence of complainant and his Advocate and thereby the affecting rights of the parties without going to the previous orders. He ought to have gone through the previous order dated 5.6.1991 when he was absent by availing summer vacation. Not only this but also it is the duty of the court while passing the acquittal order has to go through the previous order sheets to find out whether the order going to be passed, is correct or not. A court is required to pass order by applying judicial mind but not otherwise. When the stage of hearing on prosecution side had been completed adducing evidence by the prosecution and case is landed at the stage of defence as happened in this case, the learned court below should have avoided to pass order of acquittal and he was required to pass order of adjournment of the case for further hearing or close the hearing of the case as the presence of complainant and his Advocate were not absolutely necessary either on 5.6.1991 or on 10.6.1991. Be that as it may, the impugned order dated 10.6.1991 is not legal and proper, requiring the interference. The point for discussion is answered accordingly. CONCLUSION 18. In view of the aforesaid analysis and the duty of court as explained, the impugned order of acquittal dated 10.6.1991 being dehors to the provision of law and decisions of the Hon'ble Apex Court, is not sustainable in law. 19. Hence the order of acquittal passed by the learned court below is hereby set aside. Now the case is remanded to the learned S.D.J.M., Jeypore who is to afford opportunity to the complainant to re-cross-examine D.W.2 on 19.1.2016. Both parties are directed to remain present in the court of learned S.D.J.M., Jeypore on that day and receive instruction. If the complainant or his Advocate would not re-cross-examine D.W.2 on 19.1.2016, the matter would be closed. If there is any application from the side of defence to adduce further evidence, learned S.D.J.M., Jeypore is directed to take up the hearing of the case on day to day basis, but at any rate learned S.D.J.M., Jeypore shall dispose of case according to law by end of February, 2016 as it is a case of 1991. The Criminal Appeal is disposed of accordingly. Disposed off