M.H. Beg, J.
1. This is an appeal against an acquittal of the accused under Section 247, Cr. P.C., from a charge under B, 123 of the Motor Vehicles Act. The learned Magistrate who passed the order of acquittal on 14.6.1963 has clearly misunderstood the provisions of Section 247 of the Criminal Procedure Code which provides that, if, on the date appointed for the appearance of the accused, or, on any subsequent date of hearing, to which the case has been adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless the Magistrate thinks it proper to adjourn the hearing of the case to some other date. It was, therefore, not incumbent upon the Magistrate to have automatically dismissed the complaint on any date on which the complainant did not appear. The language of Section 247 of the Criminal Procedure Code shows that the word 'shall' is not mandatory, but only confers the jurisdiction upon the Magistrate to acquit the accused if the Magistrate does not consider it proper to adjourn the case. Again, the proviso to Section 247, Cr. P.C. empowers the Magistrate to dispense with the personal attendance of the complainant on any date on which, in the opinion of the Magistrate, the personal attendance of the complainant is not necessary.
2. In the present case, the complainant, Sri I. D. Mathur, Traffic Superintendent Government Roadways, Bareilly, gave evidence on 7.8. 1962 after his complaint had been registered on 7.3.1961. The order-sheet for 7.3.1961 merely states:
Register the case and summon the accused for 3.4.1961.
3. A number of dates were fixed and adjournments taken on various grounds until 13.2.1962 on which date the complainant Sri I. D. Mathur was not present although the counsel for the accused was present and the Assistant Public Prosecutor was present. The Assistant Public Prosecutor undertook to produce Sri I. D. Mathur for evidence on 7.3.1962. This application was granted and Sri I. D. Mathur gave his statement. After that, a number of dates were fixed again for various stages of the case including the evidence for the defence and arguments, and, finally, 14.6.1963 was fixed for judgment. On 14-6-1963, the learned Magistrate, relying on the order-sheet of 7.8.1961 of a time when the Court was presided over by his predecessor-in-office, held that Sri I. D. Mathur not having attended Court in person on 7.3.1961 nor having made any application requesting the Court to exempt him from personal attendance, the complaint had to be dismissed and the respondents acquitted irrespective of the merits of the case against them.
In other words, after more than 40 dates of hearing after 7.3.1961 and after good deal of time of the Court had been taken by the adduction of the prosecution and the defence evidence and hearing of arguments, the judgment was given to the effect that the proceedings which had been taken before the learned Magistrate were null and void for contravening Section 247 of the Criminal Procedure Code, I am afraid that the learned Magistrate has misunderstood the provisions of this section. It is clear from these pro-visions that it was open to the Magistrate to dispense with personal attendance of the complainant on any date on which the complainant is unable to appear or he does not appear. It is not necessary for such exemption from personal attendance that an application in writing should have been made. The order of the learned Magistrate dated 13-2-1962 fixing 7.3.1962 for the evidence of the complainant on the ground that the complainant was not present on 13.2.1962 itself amounted to a condonation of the absence of the complainant on any date prior to that. If, on any date of hearing subsequent to the appearance of the complainant on 7.3.1962 in the Court, to give evidence, the Magistrate did not find it possible to continue with the case without such personal attendance he may have acquitted the accused persons.
When the learned Magistrate did not do so earlier it could be presumed that he condoned the earlier absence. The mere failure of the complainant to apply and obtain a specific order of the Court dispensing with his attendance on any date is not enough for an acquittal. An exemption from personal attendance can also be implied from the orders of the Court. The powers under Section 247, Cr. P. C. have to be exercised judicially and reasonably. Arbitrary and sudden acquittals, as the one the learned Magistrate seems to have ordered in this case for some previous absence are not justified. I have already dealt with this matter in Govt. Appeal No. 2199 of 1963, State v. Waheed Beg. on September Section 1965 (All). I also allow this appeal, set aside the order of acquittal which is illegal. I direct that this case will go back to the District Magistrate, Bareilly, who will send it for re. trial by a Magistrate other than the Magistrate who had acquitted the accused persons on an illegal and erroneous ground.