Lallubhai Shah, Acting C.J.
1. In this case the Magistrate has made the order under Section 250 of the Code of Criminal Procedure without giving to the complainant an opportunity of putting forward his objections to the order. The reason given by the Magistrate for adopting that course is that in his view the complainant had been absenting himself on the appointed days of hearing, and, as he conjectured, probably fearing that he would be called upon to pay compensation. It is difficult to understand how any inference could be drawn against the complainant from his absence. He was not bound to be present at those dates of hearing, or at any rate, on the day on which the order was made. There is nothing to show that he was bound to be present, and in fact he was absent. The Magistrate has read the proviso to Sub-section (1) of Section 250 as though it contained the words if the complainant be present.' But those words are not there and it is difficult to read words in the proviso which are not there. It is clear that under the proviso, the Magistrate was bound to hear the complainant before making the order which in the present case he failed to do. It appears from the judgment that the complainant's pleader was there, but he was unable to urge any objection on behalf of the complainant as he had no instructions from the complainant on the point, Under the circumstances the presence of the pleader on that date could not be treated as dispensing with the necessity of the Magistrate's calling upon the complainant to state his objections to any order that he might propose to make under Section 250. On this ground alone the order in the present case ought to be set aside.
2. I, therefore, make the rule absolute, and direct the amount, if paid, to be refunded to the complainant.
3. The accused in this case, though served, has not appeared to support the order.
4. I agree.