Section 256 CrPC applies only after service of summons; dismissal and acquittal were set aside where process remained unserved.

Section 256 of the Code of Criminal Procedure applies only after summons has been served, the accused has appeared, and the complainant then defaults on the hearing date. Where the matter is still at the stage of service of process and service is incomplete, the complaint cannot be dismissed for non-prosecution under Section 256 and the accused cannot be acquitted on that basis. In such a situation, the court may consider Section 204(4) if steps for service are not taken, but not Section 256. As service had not been completed and the accused had not appeared, the dismissal and acquittal were unsustainable and were set aside, with the complaint restored and remanded.

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Issues: Whether the complaint could be dismissed and the accused acquitted under Section 256 of the Code of Criminal Procedure, 1973 when summons had not been served and the matter was still at the stage of service of process.

Analysis: Section 256 of the Code of Criminal Procedure, 1973 applies only after summons has been served and the accused has appeared, and the complainant then fails to remain present on the date fixed for hearing. Where the case is still at the stage of service of summons, dismissal for non-prosecution cannot rest on that provision. In such a situation, the court may act under Section 204(4) of the Code of Criminal Procedure, 1973 if steps for service are not taken, but it cannot invoke Section 256 to dismiss the complaint and acquit the accused. The record showed that service had not been completed and the accused had not appeared.

Conclusion: The dismissal of the complaint and acquittal of the accused under Section 256 was unsustainable in law and was set aside. The complaint was restored and the matter was remanded to the trial court for proceedings.

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