J.N. Datta, J.C.
1. This is an appeal with special leave against the order of acquittal under Section 417 (3) of the Cr.PC
2. The case which was started on a complaint was for an offence punishable under Section 352 IPC which is triable as a summons case. The case after pending for an inordinately long time came to be transferred to the file of the Magistrate who passed the order of acquittal. On receipt of the case the said Magistrate passed an order on 13-2-1957 that the parties be summoned for 8-4-57, because obviously the parties had no notice about the court or the date of hearing.
On 8-4-57, the parties were absent when the case was called and the summons to the complainant having not been received back the Magistrate ordered re-issue of summons to the complainant and fixed the case for 15-5-57. Later on the same day the Bench clerk put up the summons issued to the complainant for 8-4-57, and it was found that the complainant had been already served. The report on the summons also goes to show that the complainant was served personally some days before 8-4-57. But the summons to the accused was still un-served. The learned Magistrate then proceeded to pass the impunged order of acquittal under Section 247 Cr.PC
3. There can be no doubt that the case was governed by Section 247 of the Cr.PC, but that section certainly contemplates the use of discretion on the part of Magistrate in dismissing the complaint. The Magistrate has a discretion to adjourn the hearing on any day when the complainant Is absent. This will naturally depend on the circumstances of each case.
If a case is only nominally toed for hearing )r is fixed for the purpose of fixing a new date, absence of complainant should not be a good ground for acquitting the accused persons : see Amir Mia v. Sarafdi Hazi 21 Cri LJ 252 : A.I.R. 1920 Cal 68 (A) and In re Jamnabai Meghji 35 Cri LJ 1139 : A.I.R. 1934 Bom 130 (B). Similarly when a complainant was prevented from attending court on the day of hearing on the ground of heavy floods it was held that the discretion was not properly exercised : see Sreemuttee Fazoonissa v. Wassil 24 Suth WR 54(2) (Cr.) (C).
In the present case, reasons similar to those which have been mentioned above are present, 3ince on 8-4-57, the accused was unserved and absent, the case could not have gone on and an adjournment would have been inevitable for securing the presence of the accused. Again it has been allaged by the appellant that the Mao P. S. was attacked by hostile Nagas on :he night between 6-4-57 and 7-4-57 and it was risky for him to nave attempted to come to Imphal. The learned Counsel for the appellant further explained In the course of Ms arguments that the village of appellant is about 50 miles from Imphal and the appellant would have been required to pass through jungles for coming to Imphal. This raid on the Mao P. S. is well-known and was not disputed before me, and it is reasonable to expect in these circumstances that the appellant could not take the risk of moving out during that period.
4. For the above reasons I consider that the learned Magistrate did not exercise his discretion in a proper way and set aside the order of acquittal and remand the case to him for trial according to law. The parties are directed to appear before him on 10-2-58. This is a long pending case and the Magistrate is directed to dispose it of with all expedition.