JUDGMENT : 1 Though notice is duly served, no one appears for and on behalf of respondent-State. 2 This is an appeal preferred against the judgment and order of the trial Court being the Court of learned 3rd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara, whereby the Court had acquitted the accused respondent by passing the judgment and order under section 256(1) of the Criminal Procedure Code on 11.02.2017. 2.1 Section 256 of the Criminal Procedure Code deserves to be profitably reproduced at this stage: “256. Nonappearance 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 subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death.” 2.2 It is within the powers of the learned Magistrate before whom the complaint is pending to acquit the accused, if on the date scheduled for appearance of the accused or any day subsequent thereto, when the hearing is adjourned, the complainant does not appear. Of course, the proviso to this provision also contemplates that once the representation is permitted through the pleader or by officer conducting the prosecution and the personal attendance of the complainant is found necessary by the Court, the Court may dispense with his attendance and proceed with the matter. Of course, the proviso to this provision also contemplates that once the representation is permitted through the pleader or by officer conducting the prosecution and the personal attendance of the complainant is found necessary by the Court, the Court may dispense with his attendance and proceed with the matter. 3 As can be noticed from the judgment impugned that on the ground of constant absence of the complainant, the Court has exercised the powers under section 257 read with section 204(4) of the Code of Criminal Procedure, while so doing it has referred to the decision of this Court passed in Criminal Appeal No. 2405 of 2009 and the decision of the Apex Court rendered in the case of Criminal Appeal NO.755 of 2008, wherein the Court opined that when the complainant is not conscious or aware and chooses to remain absent constantly, the Court can invoke such power of dismissal of complaint and, hence such exercise has been done. 3.1 This Court has heard learned advocate Mr. Nilesh Pandya, who has argued fervently to point out that the Rojkam clearly indicates that the accused respondent was not present after his appearance. Matter was posted for recording of plea and, thereafter, only on one occasion the complainant had not remained absent and the Court exercised powers under section 256(1) of the Criminal Procedure Code, which is nothing but patent illegality and the same deserves interference. 3.2 Learned Additional Public Prosecutor for respondent No.1 has supported the case of the complainant and has urged that there is no dispute to the vide powers given for dismissal, but the same shall have to be exercised considering the factual matrix of each case. 3.3 This Court had called for the record and proceedings and had examined that in a matter, which is pending from the year 2010, after much endeavour the accused filed his appearance and the matter continued to be on the plea to be recorded of the accused from 03.11.2012. In fact, even on 08.02.2017 the matter was still posted for recording of plea and yet on 11.02.2017 the Court, on the ground of constant absence of the appellant, has dismissed the matter. The complainant, had not remained present twice in the year 2014 and thereafter, the Rajnama from 17.12.2016, where the matter is posted for recordance of plea of the accused. The complainant, had not remained present twice in the year 2014 and thereafter, the Rajnama from 17.12.2016, where the matter is posted for recordance of plea of the accused. On 08.02.2017 also, the accused has remained absent as the learned advocate for the complainant. However, the plea of the accused is to be recorded by the Court and it is between the Court and the accused. Even in absence of the complainant or his advocate, this is an obligation of the Court to record the plea of the accused where the accused chooses either to admit the guilt or in not so doing, the matter proceeds on recordance of evidence. For very strange reasons, the Court noticing the absence of the complainant has dismissed the case and given acquittal to the accused. 4 Mr.Dhruv learned advocate appears for respondent accused, Mr. Nilesh Pandya, learned advocate for the appellant and Mr. K.P.Raval, Additional Public Prosecutor for respondent No.1 has been heard. Office to accept the V.P. of learned advocate Mr. Dhruv. 5 The order being patently illegal, deserves interference. Therefore, order dated 11.02.2017 passed by learned 3rd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara in Criminal Complaint No.4128 of 2010 is quashed and set aside, the matter is restored to file. The Court concerned shall proceed with the matter being of the year 2010 without further loss of time and shall complete the trial within six months. Original record and proceedings shall be immediately remitted back to the Court concerned. Appeal is allowed accordingly. 6 The accused shall need to be separately summoned by the Court concerned. It has been assured by the learned advocate Mr. Dhruv that the respondent accused shall appear before the Court and both complainant and accused shall remain present before the Court concerned on 05.02.2018.