Venkateswara Rao, J.
1. This Criminal Appeal, which is preferred by the complainant in C.C. No. 666 of 1965 on the rile of the Judicial Second-Class Magistrate, Allagadda, against the acquittal of the respondent herein under Section 247, Cr.P.C., has been referred to the Bench, by our learned brother Kondiah, J., having regard to the fact that another Appeal No. 57 of 1966 (Andh. Pra.) involving questions similar to those arising in this appeal has already been referred to the Bench for decision.
2. A private complaint filed by the appellant against the respondent under Section 98 of the Gram Panchayat Act in the Court of the Judicial Second-Class Magistrate, Allagadda, was registered as C.C. No. 666 of 1965. This case stood posted to 2.11.1965 for examination of the complainant and his witnesses. As the complainant was not present either in person or by Pleader when the case was called on for hearing on 2.11.1965, the learned Magistrate acquitted the respondent under Section 247, Cr.P.C. Aggrieved by this order the complainant preferred this appeal.
3. The appellant admittedly, appeared in the Court at 11-40 a.m. the same day, i.e., almost immediately after the order of acquittal was passed by the learned Magistrate and filed a petition requesting the Court to restore the case to its file after setting aside the order of acquittal. But the learned Magistrate dismissed that petition in the following terms:
Only this case and another bail application were posted to this day. As the peon has gone to the Treasury, the case-was called at 11-30 a.m. Accused was present and the complainant was absent when the case was called. The case was posted for trial. Hence, the accused was acquitted under Section 247, Cr.P.C. It is a fact that the complainant appeared in Court at 11-40 a.m. But I have no jurisdiction to-take the case again on file as the accused was already acquitted under Section 247, Cr.P.C., for the absence of the complainant. Hence the petition is dismissed.
On the strength of this order, pointing to the fact that the appellant made his appearance in the Court below within minutes after his case was disposed of, it is contended that the learned Magistrate acted arbitrarily, capriciously and also illegally in not waiting for a reasonable time in exercising his jurisdiction under Section 247, Cr.P.C. Public Prosecutor v. T.S. Prasad AIR 1960 Andh Pra 198, wherein it was held by Sanjeeva Row Naidu, J. (as he then was), that Section 247, Cr.P.C., does not at all apply to cases in which the complainant appears in the Court on the appointed day though not when the case is called for hearing, is relied upon in support of this contention. But we have already expressed the reason why the decision referred to above cannot be interpreted as laying down a general principle that no order under Section 247, Cr.P.C., can be passed in any case of absence of complainant till the end of the working hours of the Court or that such an order could be passed if only the complainant does not appear at all during the Court hours on the day of hearing, in our decision in the other Appeal No. 57 of 1966 (Andh. Pra.) referred to us. This apart, we are bound by the Division Bench decision of the composite Madras High Court in Nagararnbilli-Tonkya v. Matta Jagannatha AIR 1926 Mad 1009, wherein it was held that the absence of the complainant at the time when the case is taken up for hearing is sufficient to justify the Magistrate in dealing with the case under Section 247, Cr.P.C., and acquit the accused, and that the Court is not bound to wait till the close of the day to see whether the complainant appears, before proceeding under Section 247, Cr.P.C. It must, therefore, be said that the learned Magistrate was justified in acquitting the respondent under Section 247, Cr.P.C., as the complainant was admittedly not present in the Court when the case was called on for hearing.
4. We have expressed in our judgment in Crl. Appl. No. 57 of 1966 (Andh. Pra.) that the High Court has the power, while dealing with an appeal preferred under Section 417(3), Cr.P.C., by the aggrieved complainant against an order of acquittal under Section 247, Cr.P.C., to examine the sufficiency of the cause assigned by the complainant for his absence in the Court when the case is called on for hearing and to set aside the order of acquittal if the reasons assigned by the complainant for his absence are found to be satisfactory. So, the only other question that remains to be considered in this appeal is as to whether the appellant has satisfactorily explained his inability to be present in the Court below when his case was called on for hearing.
5. The petition, which the complainant admittedly filed within ten minutes after his case was disposed of by the Court bellow under Section 247, Cr.P.C., would show that he could not attend the Court in time on that day as the bus by which he was travelling from Ahobalam to Allagadda went out of order en route. The very fact that the complainant reached the Court within minutes after his case was disposed of and that he immediately moved the Magistrate for the restoration of his case would probabilise his stand that he could not attend the Court in time on the relevant day for reasons beyond his control. We are, therefore, satisfied that this is a fit case in which the appellant should be afforded an opportunity of substantiating his complaint against the respondent.
6. In the result, therefore, the order of acquittal passed by the Court below under Section 247, Cr.P.C., is set aside. The learned Magistrate will restore the complaint in its original number and dispose it of according to law after giving reasonable opportunity to adduce evidence. The appeal is accordingly allowed.