A.H. Khan, J.
1. This is a reference by the Sessions Judge, Bhind, and it arises Out of the following facts :
One, Kishanchand Shastri filed a complaint against a Police officer and a Head-constable for wrongful confinement imder Section 342 of the Indian Penal Code. On the 16th January 1961, the complainant did not appear. The accused were present and they submitted an application to the Court that according to Section 247 of the Criminal Procedure Code, the complaint must be dismissed and the accused he acquitted. The Magistrate dismissed the application and adjourned the hearing of the case to some other date. In passing the order of adjournment, the learned trial Court said that the offence was a cognizable offence. The trial Court also issued a bailable warrant for the appearance of the complainant. Against this order, both the accused went in revision before the Sessions Judge, Bhind. The learned Sessions Judge. is of the opinion that the trial Court should have dismissed the complaint, and, that no adjournment should have been granted.
2. From the facts stated above two questions arise for consideration:
One, whether the trial Court on the non-appearance of the complainant is in every case bound to dismiss the complaint and acquit the accused, or, has it any discretion to adjourn, the hearing of case and fix some other date.
Two, whether the order of the trial Court in issuing a boilable warrant for the appearance of the complainant is proper or not.
3. With regard to the first question, it is laid down in Section 247 of the Criminal Procedure Code that on the non-appearance of the complainant, the court shall acquit the accused. But it is also laid down in the same section that the court is not bound to acquit the accused, and, that for some reason it can also adjourn the hearing of the case to some other date. It is thus obvious that when the complainant does not appear, there, are two courses open to the Court: Ordinarily (and this is the usual thing) the court would acquit the accused. But exceptionally the court may adjourn the hearing to some other day. If a Magistrate in the exercise of his discretion has adjourned the cast,' it cannot be said that he acted wrongly or illegally. It is all a question for Magistrate's discretion.
4. Now let us examine the reason why the trial court chose to adjourn the case. The complaint is about wrongful confinement, which is a very serious offence. In view of the seriousness of the offence, which deprives one of one's liberty, the Magistrate did not know whether the complainant really wanted to give up his complaint, or whether the complainant did not come to Court for some other good reason. The Magistrate unfortunately hag used the word 'cognizable' which does not convey what he really meant. The choice of the word is rather unhappy. I take it that what he meant to convey by the use of the term 'cognizable' was that the complaint was of a serious nature and in the interest of public the matter should be gone into. In this view of the matter, the adjournment granted by the trial Court need not be interfered with.
5. The second question for consideration is whether the Magistrate was justified in issuing a boilable warrant in order to compel the appearance of the complainant.
6. I am afraid I have not been able to find out any law, whereby the complainant Emil be forced to appear in the court by a process such as was resorted to by the learned Magistrate. He has allowed his discretion to out-run the, law. Obviously the learned Magistrate was in error when he passed this order. But this order wag a ground of grievance to the complainant. It has to do nothing with the accused. The complainant has not come up in revision to challenge the correctness of this order. Since I am seized of the case under the dictatorial jurisdiction of this Court, I think it proper to set it aside. The case being before me under Section 439 of the Criminal Procedure Code, I do not think it necessary to issue a notice to the complainant to show cause why the order passed against him should not be quashed. According to Clause 2 of Section 439 of the Cri.P.Code, an order in exercise of the revisional jurisdiction should not be passed to the prejudice of a person, unless he has been granted an opportunity to be heard. This order of mine being in favour of the complainant, do notice need be issued to the complainant.
7. For reasons stated above, while reject the reference about adjourning the case, I quash the order of the. trial Court, with regard to the issu'3 of the boilable warrant for the appearance of the complainant. The reference is thus disposed of.