Sanjeeva Row Nayudu, J.
1. This is a State appeal against the order of the Sub-Magistrate, Pithapuram, who, acting under Section 247, Criminal Procedure Code, acquitted the accused.
2. It is contended by the learned Public Prosecutor that the case was posted for hearing to 5-3-1958, which was a public holiday being the Holi festival day, but nevertheless the complainant, who was the Assistant Inspector of Labour attended the Court at 11 O'clock the usual hour, but he was informed by the Clerk of the Court that the Magistrate had gone on camp and he was not likely to come back for some time and accordingly the complainant went to have his mid-day meal at one O'clock, having informed the clerk of the court that he would be returning by half past one. Apparently, the Sub-Magistrate returned from camp, attended the Court during the interval, called the case and acquitted the accused throwing out the complaint
3. The question for consideration is, whether the order of the Magistrate is valid and is justified.
4. Section 247, Criminal Procedure Code is as follows:
'If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:
Provided that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his_ attendance, and proceed with tile case.'
This section applies to a case of a private complaint. The following conditions must be fulfilled before action could be taken under Section 247, Criminal P. C., by a Magistrate to acquit the accused for the absence of the complainant.
(1) The proceedings must have ensued on a private complaint;
(2) The complainant should not have appeared before the Court on the day appointed for the appearance of the accused or on a subsequent day to which the hearing may he adjourned;
(3) There should not be proper reasons justifying the adjournment of the hearing to some otherday.
5. It may be regarded as obligatory on the part of the Magistrate to acquit the accused under Section 247 Criminal P. C., when the Magistrate is-satisfied that the complainant did not appear at ell and that there were no justifiable or proper reasons to adjourn the hearing. In the nature of things, the section cannot apply to a casual absence of the complainant. In all cases, where the complainant appears in the court on the day of the hearing, this section does not apply at all. It is only when the complainant does not appear at all during the court hours, on the day of bearing, that the Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. Such absence may, in most cases, be due to justifiable cause. Having come to court, the complainant might have gone to take a cup of coffee or to answer the call of nature or to take his meal. Such temporary absence from Court after the complainant had appeared gives no jurisdiction for the Magistrate to take action under section 247, Criminal P. C. The words 'does not appear' have only one meaning in the context, that is the failure to appear must have been during the working hours of the Court. Even in such a case, the Magistrate is bound to satisfy himself that there are no justifiable reasons to adjourn the hearing of the case.
6. There is a frequent tendency among Magistrates to take action under Section 247, Criminal P. C., by ordering acquittal of the accused even when the complainant was temporarily absent from the court premises. Criminal Courts are established to try offences, punish them if the offences alleged are proved. Interests of justice are by no means furthered by a summary disposal of cases by Magistrates, whether it be for the purpose of disposal or otherwise.
7. Both as a matter of law as well as by way of prudence, the Magistrates should wait till the end of the day that is until the time they rise from the Bench when the Court closes for the day before taking action under Section 247, Criminal Procedure Code.
8. In the particular case, the Assistant Inspector of Labour, who is the complainant, did in fact appear in the Court on the day of hearing and had given justifiable reasons for his temporary absence occasioned by his having to take his lunch. The teamed Magistrate had apparently other duties to perform, besides the judicial work. In any case, the posting of the hearing of a case on a Public Holiday should not be resorted to, except in an emergency which justifies it. The Public are as much entitled to the benefit of a public holiday as the Courts or the Magistrates or other public offices.
9. In the result I set aside the acquittal of the accused and direct the Court below, which I understand is now the Judicial IInd Class Magistrate's Court Tuni, to take the case back to its file and hear and dispose of the case according to law.