LAW FOR ALL

But if the presence of the complainant on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice."= "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. " Considering the above decision along with Section 256 Cr.P.C., it is a discretion of the Magistrate to adjourn the matter or dispose of the matter, the Magistrate has to exercise his discretion judicially. Since it is a matrimonial dispute and the complainant is residing away from her matrimonial home, the learned Magistrate has to give one more opportunity to put forth her case. But the discretion exercised by the learned Metropolitan Magistrate is not legally sustainable. But however, the matter is pending in the matrimonial Court (i.e.) Sub-Court Tambaram in respect of divorce petition filed by the husband under Section 13(1)(i)(a) of the Hindu Marriage Act. Considering the gravity of the complaint and relationship between both sides, I am of the view, the order passed by the learned XV Metropolitan Magistrate is liable to be set aside and hence, it is hereby set aside.