Anna Chandy, J.
1. This appeal is directed against an order of acquittal passed by the First Class Magistrate, Perintal-manna Under Section 247 of the Cr.PC The appellant the Executive officer of the Perintalmanna Panchayat Board filed a complaint against the accused in the case for infringing the Panchayat Rules by burying dead bodies at a place other than a licensed burial ground. The complainant examined his witnesses, but the cross-examination was deferred at the request of the defence counsel. The case was posted for further proceedings on 17-12-60 on which date at the instance of the defence counsel the case was again adjourned to 2-1-1961. On 2-1-1961 the accused and the defence counsel were absent. The complainant was also a little late but his counsel Sri C. P. Mohammed was represented in court by another Advocate Sri K. P, Thomas.
Shortly after 11 A. M. Sri. Thomas was called into the chambers of the .Magistrate and the case was called. He represented that the complainant was on his way to the court and that his counsel Sri C. P. Mohammed was ready with the case and would been court presently. Sri Thomas was asked to fetch the complainant and his counsel. Sri Thomas immediately informed Sri Mohammad who was in the nearby Munsiff's Court. He straightaway proceeded to the Magistrate's Court where he found the court-peon being examined to prove the absence of the complainant when the case was called.. At 11-15 A.M. and before the peon's examination was over the complainant also came up. Sri C. P.; Mohammed represented that the complainant was present in court and the pass may be proceeded yvith. The Magistrate .refused to pay heed to that prayer and acquitted the accused Under Section 247 of the Code of Criminal. Procedure, evidently on the ground that the complainant was 'absent at the moment the case was called.
2. Notice of this appeal was served on the accused but he has not entered appearance. The Public Prosecutor on whom notice was served also does not question the correctness of the facts as alleged by the appellant though he would maintain that the order of acquittal Is proper.
3. In supporting the order of acquittal the learned.In a summons case when the complainant does not appear it is imperative on the part of the Magistrate to acquit the accused unless there is a proper reason for adjourning the hearing of the case.
Reliance was also placed on the observations made in Tonkya v. Jagannatha 51 Mad U 730 : A.I.R. 1926 Mad 1009 that:
The words 'upon the day appointed for the appearance of the accused' in Section 247 do not mean any time before the close of the working day. The complainant should appear when the case is called on for hearing.
As against this the appellant's counsel cited the decision of the Allahabad High Court in Ram Narain v. Mool Chand : AIR1960All296 in support of the position that the word 'day' in the phrase 'upon the day appointed for the appearance' occurring in Section 247 cannot be interpreted as that moment in the day when the case is called and it meant the whole of the working hours of the day.
4. I do not think however that the decision cited before me can be of much help in deciding the present case which is peculiar in that the order of acquittal for the absence of the complainant was passed in the presence of the complainant.
5. Section 247, Criminal Procedure Code reads thus:
If the summons has been issued on the 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.
The Section provides for the acquittal of the accused] when the complainant does not appear in court on the I 'day' the case is posted.
6. It therefore appears doubtful whether the present order can be considered as an order Under Section 247, for unless one is prepared to interpret the Section as meaning that if the complainant is absent at the moment the case is called the accused should be deemed to be (sic) acquitted, it is hard to imagine how the Section justifies the acquittal of the accused when the complainant is actually present. Apart from that, even Under Section 247 it is difficult to sustain the present order. The Section gives the Magistrate a discretion not to acquit the accused if he thinks there are proper reasons for adjourning the case. When the complainant appeared before him within a few minutes of the calling of the case and before the order was actually passed the Magistrate should certainly have satisfied himself that reasons for the few minutes' delay were not indeed proper.
7. Section 247 is evidently intended to prevent dilatory tactics on the part of complainants and consequent harassment to accused persons. Like any other, the power under this Section also has to be used judicially and judiciously and not in a manner that makes the remedy worse than the disease. It is not proper to throw but a case in a hasty or thoughtless manner when the complainant has proved his bona fides and shown himself vigilant in prosecuting the accused.
8. This hasty action on the part of the Magistrate has resulted in miscarriage of justice and the order of acquittal has necessarily to be vacated. The order of acquittal is set aside and the case remitted to the lower Public Prosecutor relied on a decision of the Madras High court for fresh disposal Recording to law