1. The appellant is the complainant in C. C. No. 3508 of 1973 on the file of the IV City Magistrate, Hyderabad. The learned Magistrate dismissed the complaint and acquitted the accused under Section 247, Criminal P. C, on the ground that the complainant was not present in person when the case was called on for hearing.
2. In this case, the complainant (Regional Assistant Inspector of Factories) is admittedly not present when the case was called, and he deputed his attender to request the Court to pass over for a while as he had been to Munsif Magistrate's Court Hyderabad (East),
3. The learned public prosecutor assails the order of the acquittal on the grounds (1) that the complainant arranged the attender of the office to request the Court to pass over for a short while as he was engaged in another Court and (2) that the Magistrate ought to have waited till the close of the day before passing orders under Section 247, Criminal P.C.
4. I do not find any substance in any of these grounds. It is true that Section 247 Criminal P.C. does not prevent the Magistrate from exercising his discretion to pass over for a while for the appearance of the complainant, if any representation is made to that effect by his counsel or his representative. The Magistrate has also discretion to adjourn the case to some other day if he is satisfied with the reasons assigned by the complainant's advocate or his representative as to the circumstances that disabled the complainant from attending the Court on the date of hearing. But when no representation is made to the Court for passing over for a while or for adjourning the hearing to a future date, the Magistrate is justified in dealing with the case under Section 247, Criminal P.C. and acquitting the accused.
5. In the instant case, the attender did not make any such representation to the court when the case was called. His informing the Bench Clerk cannot be deemed to be a representation to the court. Hence, the contention that the Magistrate is not entitled to acquit the accused under Section 247 Criminal P.C. when the Bench Clerk was informed by the attender cannot be accepted.
6. Regarding the second contention, legal obligation for the Magistrate to wait I have no hesitation to hold that there is no till the close of the working day for proceeding under Section 247, Criminal P.C. when the complainant is not present or when no request is made by his counsel or his representative for passing over or for adjourning: hearing.
7. The question whether the Magistrate should wait till the close of the working day for passing orders under Section 247 Criminal P.C. was considered in Tonkya v. Jagannatha AIR 1926 Mad 1009 : 27 Cri LJ 988; Punnayya v. Subbayya, 1967 Mad LJ (Cri) 397; Thimmappa v. Thimma-ppa : AIR1969AP222 and K. Papireddi v. P. Lakshmina-rayana : AIR1968AP381 . In all these decisions 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 and acquit the accused and the Court is not bound to wait till the close of the day to see before proceeding under Section 247 whether the complainant appears.
8. In the case of Papireddy v. Laksh-minarayana : AIR1968AP381 the complainant appeared in the Court at 11-40 A. M. i, e. almost immediately after the order of acquittal was passed by the learned Magistrate, since the case was called at 11-30 A. M. and he filed a petition requesting the court to restore the case to its file after setting aside the order of acquittal. But the Court dismissed it holding that he has no jurisdiction to take the case again on file after the order of acquittal passed by him under Section 247 Criminal P.C. The Division Bench of this Court held in the appeal preferred by the complainant that the learned Magistrate was justified in acquitting the accused under Section 247, Crimna] P.C. as the complainant was not admittedly present in the Court when the case was called on for hearing.
9. The Magistrate therefore need not wait till the close of the working day for proceeding with under Section 247, Criminal P.C. when the complainant does not arrange his advocate or representative to request the Magistrate to pass over for a short while or to adjourn to some other day submitting the reasons which prevented him from attending the Court, In this case no such representation was made to the Magistrate. Hence he is justified to pass orders under Section 247 Criminal P.C.
10. The next question that requires consideration is whether the reasons assigned by the complainant as to why he was not able to be present in the Court when the case is called are sufficient for setting aside the order of acquittal.
11. Now the law is settled that the High Court has the power while dealing with an appeal preferred under Section 417(3) Criminal P.C. by the aggrieved complainant against an order of acquittal under Section 247. Criminal P.C. to examine the sufficiency of the cause assigned by the complainant for his absence in the Court when the case was 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. (Vide Thimmappa v. Thim-mppa 1969 Cri LJ 852 (Andh Pra) and K. Papireddy v. P. Lakshminarayana 1968 Cri LJ' 1644 (Andh Pra).
12. The affidavits filed by the Re- nna' Assistant Inspector of Factories and his at tender disclose that both of them came to the 4th City Magistrate at about 10-30 A. M. on 31-12-1973 and the Assistant Inspector of Factories asked the attender to wait in the Court stating that he was going to the Court of the Munsif Magistrate, Hyderabad (East) and he directed the attender to submit the served summons in C. C. No. 3504/1973 when the cases were called and that he would be returning within a short time after attending that Court which is located in the same building and when the cases were called he (attender) handed over the served and unserved summons to the Bench Clerk stating that his Officer had been to the Court of the Munsif Magistrate, Hyderabad (East) and he would be coming within a short time and the accused appeared when the case was called and the learned Magistrate passed orders under Section 247, Criminal P.C. though the learned Magistrate adjourned C. C. No. 3504/73 on 9-1-1974 on the ground that the summons in that case were not served on the accused.
13. The fact that the attender handed over unserved summons in C C. No. 3504/73 to 9-1-1974 and served summons in C. C. 3508/73 to the Bench Clerk was not disputed by the Public Prosecutor and hence the presence of the attender at the time when the case was called cannot be doubted. It is, therefore, clear that the Assistant Inspector of Factories had been to the court of the Munsif Magistrate, Hyderabad (East) deputing the attender to attend in the Court of the 5th City Magistrate, Hyderabad City and represent the same when the case C. C. No. 3508/73 was called. Unfortunately the attender did not request the Magistrate to pass over stating that the complainant had been to the Court of Munsif Magistrate, Hyderabad (East.) Obviously he was under the impression that the Bench Clerk would bring this fact to the (notice of) Magistrate.
14. As the complainant had been to tine other court and he had arranged his attender to reprint, there is no negligence on the part of the complainant. I am, therefore satisfied that this is a fit case in which the appellant should be afforded an opportunity of proving his complaint against the respondent.
15. In the result, I set aside the order of acquittal and direct the Court below to restore the ease to its file in its original number and dispose of it according to law. The appeal is accordingly allowed,