1. This is a reference by the District & Sessions Judge, Karimnagar, recommending that the order of the Deputy Collector, Karimnagar dated 6.9.1951, be quashed and the case remanded to him for further trial. The reasoning given by the learned District & Sessions Judge is not, to our mind, quite correct. He was under the impression that the case is one in which the procedure applicable to warrant cases will have to be followed. Shri Madhav Rao, the learned-Advocate for the respondent, drew our attention to the order of the Deputy Collector dated 12.7.1951 in which it has been mentioned that the accused is directed to show cause why he should not be bound over to keep peace Shri Madhav Rao argues that under Section 117 when the case is one for security to keep peace, it should be tried as a summons case. Shri Gopal Rao Murumkar, the learned Government Advocate, argues that the Deputy Collector misapprehended the police report dated 25.6.1951 in which it has been stated that it was intended that proceedings under Section 110 Criminal P.C. were to be instituted and enquired into against the accused and as such the procedure applicable to warrant cases will have to be followed.
2. The case was dismissed by the Magistrate on account of the absence of the Public Prosecutor and also on account of the absence of the accused. Therefore, in our opinion, whatever the procedure to be followed may be, the provisions of Section 247 will be applicable in this case. The proviso to that section lays down that where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance and proceed with the case. It is clear from a perusal of the judgment of the Magistrate that he did not devote his attention to this part of the section. Otherwise, he would have mentioned some reasons as to why ho did not dispense with the attendance of the complainant who was a public servant in this case. We are of the opinion that the discretion to be used while applying this proviso should be judicially exercised. It is clear from the record that the case could not proceed on account of the absence of the accused. Thus the presence of the public servant-complainant-was not required and the Magistrate could and should have dispensed with his attendance. We direct that the absence of the complainant on the date be dispensed with as laid down in the section and the case is remanded to the Court of the Magistrate for trial according to law. In this connection reference is also made to the provisions of Section 200(aa) in which it has been laid down that when the complaint is made in writing nothing contained in the section shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties. In this case the complaint was made by the Officer-in-charge of the Police station concerned in the discharge of his official duties. Hence the question of examining him as a complainant did not arise. The case is remanded as above to the Court of the Magistrate for trial.