R.K. Das, J.
1. This is an appeal by the complainant under Section 417 (3) of the Code of Criminal Procedure against an order dated 3-2-62 passed by the Sub-divisional Magistrate Bhanjanagar, in complaint case No. 31/61 acquitting the accused-respondents under Section 247, Cri. P. C.
2. The appellant filed a complaint alleging criminal trespass on his land against the accused persons, in the Court of the Sub-divisional Magistrate on 21-4-1961 which was sent to the local Revenue Inspector for enquiry and report. After several adjournments, the report of the Revenue Inspector reached the Court on 4-12-1961 when cognizance was taken and the accused persons were summoned under Section 447, I. P. C. to appear on 4-1-1962. On that day the accused persons did not appear, though the complainant was present. So the accused persons were again summoned to appear on 3-2-1962. On this date, the complainant was present in the Court from early hours, but being suddenly called by nature he left the Court premises for some time and on coming back he learnt that an order acquitting the accused persons had been passed under Section 247, Cri. P. C. on account of his non-appearance at the time when the case was called for hearing. Immediately thereafter at about 12.30 p.m. he filed an application before the trying Magistrate for restoration of the case stating the reasons for his temporary absence from the Court premises. The learned Magistrate, however, rejected the petition as he was not satisfied with the grounds advanced by the complainant and also on the ground that he had no power to set aside an order of acquittal already passed. It is against this order of the learned Magistrate the complainant has preferred the present appeal.
3. That the complainant was absent when the case was called out is admitted and it also appears from the order-sheet that 3-2-62 was fixed for the appearance of the accused persons. It is necessaryat this stage to examine the provisions of Section 247, Cri. P. C. before we proceed to the merits of the case. Section 247 runs as follows:
'If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.
Provided that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.'
A plain reading of the Section shows that an order of acquittal under the section can be passed when the complainant does not appear on the date appointed for the appearance of the accused or on any subsequent date to which the hearing of the case may be adjuourned, unless of course for some reason the Magistrate thinks it proper to adjourn the case to some other date. The proviso also gives a further discretion to the Magistrate to dispense with the personal attendance of the complainant, and proceed with the case. Thus, the section empowers the Magistrate either to acquit the accused, or to proceed with the case in the absence of the complainant or to adjourn the hearing of the case to some other day for reasons which he may think proper. No doubt, the section confers wide discretion on the Magistrate, but wider the discretion, the greater is the responsibility of exercising the same, and in all such cases the discretion should be exercised judiciously.
It has to be remembered that an order under Section 247, Cri. P. C. acquitting the accused puts a seal to the fate of the complainant's case, as it operates as an order under Section 403, Cri. P. C. and as such on the same facts no fresh trial can take place as long as the order of acquittal remains in force. In such a case also the complainant is deprived of his right to a decision on merits of the case by the Court which he approached for redress of his grievances, as the case is dismissed on technical grounds. Thus the consequence of such an order being of great hardship to the complainant, the Magistrate has to properly exercise his judicial discretion and not capriciously.
4. We have next to see if under the circumstances of the case the discretion has been judicially exercised by the learned Magistrate in acquitting the appellant under Section 247, Cri. P. C. Mr. Panda, learned Counsel for the appellant, however, contended that in passing the order of acquittal, the learned Magistrate had improperly exercised his discretion, inasmuch as he should have taken into consideration that the complainant was prevented by sufficient cause from attending the Court when the case was called on for hearing, and in any case the Magistrate should not have passed an order of acquittal at early hours of the day, and should have given sufficient opportunity to the complainant before passing the order. His further contention was that the complainant has no other legal remedy against the accused persons except to get the presentorder of acquittal set aside in this appeal and to proceed with the trial of the case.
5. The uncontroverted facts in the case are that the complainant was present in the Court premises till 10.30 A.M. on 3-2-62 when he was culled by nature and after having come back he learnt about the order, and approached the Court at about 12-30 p.m. through the lawyer to set aside the said order. It appears from the order sheet that the complainant has been diligent throughout and attended the Court on several occasions stretching over a period of about eight months awaiting the filing of the enquiry report. On the accepted facts also it cannot be disputed that the complainant had sufficient cause to absent himself when the case was called out for bearing, and that immediately after he filed an application for restoration which, however, was rejected as stated above. The learned Magistrate in his order rejecting the restoration petition stated:
'The complainant appeared in Court long after the accused persons were acquitted under Section 247, Cri. P. C. The complainant was present in the Court premises at about 10-30 a.m. when he left for answering the call of nature. After answering the call of nature he came to the Court premises, learnt about the order, approached his pleader and got the petition drafted and presented the same before the Court. All this might have taken about an hour and half. It may therefore be fairly estimated that the case was called out and the order of acquittal was passed by about 11 A.M.
On this basis, it was contended by learned counsel for the appellant that the learned Magistrate has improperly exercised his jurisdiction by passing the order under Section 247, Cri. P. C. at such an early hour of the day, particularly when the case appeared fairly below in the daily cause list. He further contended that the complainant's presence was also not necessary to proceed with the case itself. That 11 A.M. is an early hour of the day, when the Court sits from 10.30 a.m. to 4 p.m. cannot be doubted. The case admittedly was fairly below in the cause-list. It also appears that the case was adjourned to that day for the appearance of the accused and for nothing else. In support of his contention, learned Counsel relied upon some decisions which I shall presently discuss.
6. In a case reported, in State of Mysore v. Mahadevappa, AIR 1953 Mys 146 an order under Section 247, Cri. P. C. was passed at 11.30 a.m. and their Lordships while reaffirming their previous decision held that the application of Section 247, Cri. P. C. to effect hasty disposal at the early hours when the day's work begins, amounts to a misuse of the discretion vested in the Magistrate and thus set aside the order of acquittal.
7. In another case the Hyderabad High Court also took a similar view. In United Industrial Corporation v. S. M. Hassan, (S) AIR 1955 Hyd 192 the case was disposed of at 11.30 a.m. and their Lord-ships while setting aside the order of acquittal held that no doubt Section 247, Cri. P. C. gives a discretion to the Magistrates to dispose of a complaint for non-appearance of the complainant, but such discretion must be used in a judicial manner. Dis-missing a complaint petition at early hours of the day was not justified under the circumstances whenthere was other work before the Court. They found the complainant had adequate reasons for being late in attending the Court, and set aside the order of acquittal. These two decisions undoubtedly support the contention of the appellant.
8. It was also contended that appearance at any time during the Court hours is sufficient compliance within the meaning of Section 247, Cri. P. C. as would appear from the use of the word 'day' in that section and the case in Ram Narain v. Mool Chand, AIR 1960 All 296 was cited as an authority for this purpose. In that case after the order under Section 247 was passed the complainant appeared in Court. His Lordship was of the opinion that the word 'day' as appearing in Section 247, Cri. P. C. should not be given a narrow interpretation so as to mean only the particular moment when the case was called out and the complainant was found to be absent, but it means the whole of the workinghours of the day. According to him it is sufficient compliance of Section 247 if the complainant appeared later in the day or who was present earlier in the day and could furnish adequate reason for his absence at that moment. With great respect, I would say that it is an extreme view. If the 'day' as occurring in Section 247, Cri. P. C. would mean the entire working hours from 10.30 to 4 then the position would be that the Court has to wait till the last hour before passing an order under Section 247. There is nothing in the section to justify, such a construction so as to entitle the parties to appear in the last moment or any time before closing hours of the day.
This view expressed in the aforesaid Allahabad decision was not approved by the Madras High Court as would appear from a case reported in N. Tonkya v. M. Jagannath, AIR 1926 Mad 1009 where it was held that no such wide interpretation could be given to the word 'day' appearing in Section 247 so as to mean any time before the closing hours of the Court. The Bombay High Court took a slightly different view in respect of the application of Section 247 as would appear from a case reported in In Re, Jamna Bai Meghji, AIR 1934 Bom 130. In this case their Lordships held that the 'day' referred to In Section 247 is the day that is fixed for the hearing of the case and not the day fixed nominally for hearing of the case and in the letter case the penalty under Section 247 should not be applied. According to their Lordships;
'when a date is fixed for the hearing of the case, it is the duty of the parties to be present at any time in course of the day when the Court may call on the case for hearing, that is, for the purpose of proceeding with it. * * * But the position is different if the case is only nominally fixed for hearing, when it cannot reasonably be expected to be reached.'
Their Lordships further held that
'it is not contemplated that the order of acquittal should be a mere matter of routine and follow automatically upon the absence of the complainant.* * * The mere unexplained absence of a complainant, when a case is called on for the purpose of fixing a new date, is not a good ground for taking action under Section 247.'
9. In the instant case, no doubt 3-2-62 was fixed for the appearance of the accused but nothingmore was to be done so far as the complainant was concerned. In the usual course of procedure, the Magistrate after appearance of the accused would have put to the accused the substance of the accusations made against him and get his explanation recorded as required under Section 242, Cri. P. C. and if the accused admits his guilt the Magistrate would proceed to convict him according to law. But where however the accused does not make such admission, the Magistrate has to proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution, as required under Section 244, Cri. P. C. and the hearing of the case commences only from that stage and not before that. The position of law has been made clear in a decision of this Court reported in Brundaban Bastia v. Birabar Bastia, 1960 Orissa J. D., 427, where it was held that it is reasonable to interpret the word 'hearing' occurring in Section 247, Cri. P. C. in the light of the meaning given to the word 'hear' occurring in Sub-section (1) of Section 244, Cri. P. C. That word in the context would apply only when the evidence of the complainant and his witnesses is being taken by the Court or when an adjournment is granted for that purpose. In view of this position it must be taken that in the present case 3-2-62 was not the date fixed for the hearing of the case, and as already stated, the order-sheet shows that the date was merely fixed for the appearance of the accused, and there is nothing to show in what way the presence Of the complainant was necessary to proceed further with the case.
Under the new amendment, the scope of the proviso to Section 247 has been widened to dispense with the presence of the complainant irrespective of the fact whether or not he is a public servant The object underlying the proviso is that the Magistrate should proceed with the case if the complainant's presence is not necessary for the purpose of the case and to form an opinion whether the presence of the complainant is or is not necessary, the Magistrate has to act judicially and not capriciously. It has been held in a case reported in Union of India v. Lachhaman, AIR 1962 Him Pra 57:
'It was not the intent of the Legislature that the Magistrate should snap at the aforesaid provision if a complainant absents himself from the Court irrespective of the fact whether for the purposes of the case his presence be or be not necessary. The aforesaid section was not put on the legislative anvil to provide the Magistrates with a short-cut to get rid of a case.'
A Magistrate can proceed with the case even in the absence of a complainant as in some cases the complainant's presence may be absolutely unnecessary. In such a case also it is not proper to apply Section 247 and to record an acquittal of the accused. In a case reported in Narendra v. Anirudha, 24 Cut LT 289 where the complainant was found to be absent on the date fixed for the defence evidence and his Lordship held:
'It does not appear, however, that the Magistrate exercised the powers conferred upon him by the proviso. The further attendance of the complainant was not really necessary in the case asthe prosecution case was over and the accused had been examined under Section 342, and the date was fixed for defence.'
Thus, it would appear that even though a case is fixed for hearing, the presence of the complainant is not always essential, and the Court before taking the drastic action under Section 247 has to apply his mind to determine whether on the particular day the case cannot proceed further on account of the absence of the complainant. He should not merely, as has been held by the aforesaid decision of the Bombay High Court, acquit the accused persons by an automatic process on account of the absence of the complainant. If that would haw been the object of the law, the proviso to Section 247, Cri. P. C. would have been unnecessary.
10. To repeat, in the present case, the date was fixed for the appearance of the accused as more or less a routine work when the accused is to get bail etc. As appears from the record, the complainant was not to adduce any evidence on that day. The learned Magistrate has passed an order of acquittal merely on account of the absence of the complainant and without applying his mind to the proviso to Section 247 and without taking into consideration whether the complainant's presence was essential for the progress of the case. The complainant's case was also last on the list, and he Would have ordinarily expected that his case was to be taken up at the fag-end of the day. It is not understood how his case was taken up so early as at about 11 or 11.30 a.m. As already stated, he was diligent throughout and the undisputed fact remains that he was called by nature causing his temporary absence from the Court premises on that day. In the circumstances, I think the Magistrate should have better exercised his discretion by giving some more time for the appearance of the complainant or even dispensed with his attendance instead of passing an order of acquittal at such an early hour of the day. I shall, however, be not understood to say that the Magistrate has to wait indefinitely till the closing hours of the Court before an order under Section 247, Cri. P. C. is passed. Each case has to be examined in its own context to determine the proper exercise of the discretion vested in the Court. In view of the aforesaid position, it must be held that the Magistrate has failed to appreciate the aforesaid proviso, and has not properly exercised his jurisdiction. I would, therefore, allow the appeal, set aside the order of acquittal passed by the Magistrate on 3-2-1962. The case will now be taken up from the stage it was on that date and be disposed of in accordance with law. The Additional District Magistrate (Judicial) shall transfer the case to the file of some other Magistrate, competent to try the case for disposal according to law.