1. This is an application in revision against an order acquitting four men. who were charged with the offences of criminal trespass and assault under Sections 447 and 352,I.P.C. The evidence for the prosecution and the evidence for the defence were taken by the Magistrate and he then fixed a date for the hearing of arguments. On that date the complainant did not appear but he was represented by counsel. The Magistrate was told by counsel that the complainant had gone to Farrukhabad to bathe in the Ganges and that he had expected to return on the date of hearing but had not appeared Counsel suggested that the complainant's presence was not necessary. The learned Magistrate refused to adjourn the case and he came to the conclusion under the provisions of Section 247, Criminal P.C., that in these circumstances he was bound to acquit the accused. He accordingly did so. The complainant appealed to the Sessions Judge, who found that he was not entitled to interfere with an order of acquittal. In the present application it is said that this Court is entitled to interfere. It may not of course convert an order of acquittal into an order of conviction, but it can set aside an order of acquittal and direct that further proceedings should be held.
2. That view is quite right. The point however is whether the Magistrate acted illegally in the action which he took. In my opinion his action was right. I find from the provisions of Section 247, Criminal P.C., that for some reason the legislature has laid it down that the personal presence of a complainant is necessary in order that a summons case should proceed. The only exception made is for a public servant whose personal attendance is not required by the Magistrate. In the case of anybody, except a public servant, the personal attendance of the complainant is necessary. In the present case the complainant did not attend in person and therefore under the provisions of Section 247, Criminal P.C., there were only two courses open to the Magistrate. The more ordinary course was to acquit the accused, as he did. The exceptional course was, if he had any particular reason for doing so, to adjourn the hearing of the case to some other day. The learned Magistrate exercised his discretion not to grant an adjournment. It seems on the face of it that he was perfectly entitled to exercise his discretion in that way if the complainant preferred going to Farrukhabad and bathing in the Ganges to appearing in Court and prosecuting his case. There is no reason for holding that the Magistrate acted wrongly and consequently there is no ground for interference in revision. I reject the application.