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Judgment
The respondent has not made her appearance, though her name has been printed in the cause list after service of notice. Heard the learned
counsel appearing for the appellant / complainant.
This Criminal Appeal is against the order of the learned Judicial Magistrate No.II, Salem made in C.C.No.727 of 2005, dated 30.09.2009,
dismissing the complaint filed under Section 256 Cr.P.C, thereby discharging the accused.
The learned counsel appearing for the appellant contends that the presence of the appellant / complainant was not required on the date of
hearing, as the accused was also absent on that day. Further he was not instructed to appear either through his counsel or by issuance of notice
and therefore the order of the learned Judicial Magistrate requires to be set aside.
This Court perused the impugned order and the averments made in the grounds of appeal.
It is clear from the order that the accused was also absent and his counsel filed petition under Section 317 Cr.P.C. There is also no mention in
the order that the appearance of the complainant was very much required on the date of hearing and the complainant has not made his appearance
on that date in spite of specific instructions by the Court.
In the absence of such necessity of appearance for the hearing or his non-appearance in spite of specific instructions of the Court, the impugned
order of the learned Judicial Magistrate discharging the accused under Section 256 Cr.P.C., for nonappearance of the appellant / complainant is
liable to be set aside. Hence, this Criminal Appeal deserves to be allowed.
In fine, this Criminal Appeal is allowed and the order, dated 30.09.2009 of the learned Judicial Magistrate No.II, Salem made in C.C.No.727
of 2005 is set aside. The learned Judicial Magistrate is directed to proceed with the case after giving notice to the accused and dispose of the case
on or before 28.03.2018 and report the same to the Registry without fail.