S. Barman, C.J.
1. This is an appeal against an order of acquittal of a charge under Section 426/448, Indian Penal Code. In view of the order of remand in this case, I express no opinion on the merits. The circumstances in which this case has to be sent back to the Magistrate are shortly stated, as follows.
2. The order sheet shows that the case was taken up for hearing for the first time on October 28, 1964 and it was adjourned from time to time, until September 20, 1965 when the Magistrate on that date made an order directing the complainant to produce his witnesses on October 14t 1965. The order as passed on that date is this:
25. 20.9.66. Complainant present. Accused is absent and his lawyer files a petition for time. To 14.10.65, Complainant should produce his witnesses on 14.10.65. Accused as before.
Sd. A.C. Das.
3. Thereafter, on October 14.1965 the data to which hearing was adjourned the complainant did not appear in spite of repeated calls in the early hours of the morning at 11.30 a.m. nor was any hazira filed. Thereupon, the learned Magistrate dismissed the complaint and the accused was acquitted under Section 247, Criminal P.C. The order, as passed by the Magistrate on that date, was this:
14.10.65-11.30 a.m.-Accused present. Complainant absent on repeated call No hazira filed. No cause of absence shown. Complaint is dismissed and accused Saroj Kumar Ghose is acquitted under Section 247, Criminal P.C.
Sd. A.C. Das
11.30 a.m. 14.10.65
4. It appears from the record that shortly after the dismissal of the complaint and acquittal of the accused by the learned Magistrate, the complainant made an application to the Magistrate the very same day to revise the order and for restoration of the case to the file. The explanation for his non-appearance when the matter was called is stated in the petition to be this:
That as the stamp vendor came little late, the complainant after getting the cartridge paper while came with the hazira and presented it to the B.C. of the honourable Court, be came to know to his utter surprise at 11.30 a.m. that the cage has been dismissed for default and accused acquitted under Section 247, Criminal P.C.
The complainant's case is that there was no intentional default on his part in attending the Court at the time of call.
5. Although the order sheet of the learned Magistrate does not show what order he passed on the complainant's application for restoration, it, however, appears that the learned Magistrate recorded his order in the margin of the application thus:
The Court sita at 10 a.m. There are no compelling reasons to recall the order passed earlier, File.
Sd. A.C. Das
6. Section 247 Criminal P.C. under which the complaint was dismissed and the accused acquitted for non-appearance of the complainant is this:
247, Non-appearance of complainant-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 and adjourn the hearing of the case to some other day; * * * *
7. The question is : What is the meaning of the word 'day' in the phrase 'upon the day appointed for the appearance of the accused'? On this point divergent views have been expressed by the High Courts. The Allahabad High Court in Ram Narain v. Mool Chand : AIR1960All296 took the view that the word 'day' cannot be interpreted as that moment in the day when the case is called; the word 'day' meant the whole of the working hours of the day and not the moment when the case is called; the failure of the complainant to appear on the day of hearing; does not merely mean that he was not present at the time when the case was called, but it also embraces and implies that the complainant when he appeared later in the day or who was present earlier in the day could furnish no adequate reason for his absence at that moment. This view however was discussed in a Single Bench decision of this Court in Chinnam Ramnath v. Chandramma Guni : AIR1963Ori90 where the Allahabad view-was commented as expressing an extreme view in that if the 'day' as occurring in Section 247, Criminal P.C. would mean the entire working hours from 10.30 to 4.30 then the position would-be that the court has to wait till the last hour before pissing an order under Section 247; there is-nothing in the section to justify such construction so as to entitle the parties to appear in the last moment or any time before closing hours of the day.
8. Indeed, the Allahabad view was also not approved by the Madras High Court as would appear from Nagarambilli Tonkya v. Matta Jagannatha 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 in, In re Jamnabai Meghji AIR 1984 Bom 180. With great respect, I agree with the view taken by this Court in : AIR1963Ori90 .
9. In the ultimate analysis, therefore, the position in law seems to be this. In disposing of the application under Section 247 the court should use his discretion on the facts and circumstance of each case. An order passed under Section 247 in the early hours of the day at 11 or 11.30 a.m. has been rightly held to be hasty disposal at such early hours when the day's work begins and as such it amounts to misuse of the discretion vested in the Magistrate. The court must wait for reasonable time for the appearance of the complainant before passing such an order. Each case has to be examined in its own context to determine the proper exercise of the discretion vested in the court.
10. In the present case, the case was called in the early hours of the day at 11.30 a.m. It was not due to any laches on his part that the complainant could not appear when the case was called, but it was due to the stamp vendor having been late that the complainant could not attend the court at the time the case was called as stated in the petition for restoration filed on the same date. In fact, one prosecution witness had already been examined and the case was fixed for further evidence on the said date. In such case, the High Court has power to set aside the order of acquittal when such order is not passed on merits or that the circumstances of the case indicate that the magistrate his improperly exercised his jurisdiction vested in him to dispose of the case. The order of dismissal of the com. plaint and acquittal of the accused by the learned magistrate cannot therefore be sustained.
11. In the result, the criminal appeal is allowed, and the order of dismissal of the complaint and acquittal of the accused is set aside with a direction that Case No. 595 C.1/64 in the court of the sub-divisional Magistrate Sadar, Cuttack may be taken on the file and further proceeding conducted with a view to dispose of the case according to law. The learned magistrate is directed to dispose of the case as expeditiously as possible.