C.B. Bhargava, J.
1. This is an appeal under Section 417(3) of the Code of Criminal Procedure against the order of acquittal passed by the Magistrate, First Class, Ajmer on 17th March, 1962 in, the case instituted on a private complaint.
2. It appears that Shri J. George filed complaint under S. 323 of the Indian Penal Code: against Mrs. Premi Solomen and Miss Asha Soloman for causing hurt to his wife. Statement of.' the complainant was recorded on 17th January,. 1962 but the statement of his wife remained incomplete on that day on account of some objections being raised on behalf of the accused regarding the admissibility of a document. The objection was decided on 30th January, 1962, when the>; case was adjourned to 11-3-62. When the case-was called the complainant was absent and the learned Magistrate, acquitted the accused on account of the non-appearance of the complainant, acting under Section 247 of the Code. It appears, that on the same day an application was submitted; by the complainant for the restoration of the complaint on the ground that he did not hear the call given by the Chaprasi, It was stated that the complainant had come to the court exactly at 10-30 and remained sitting in the verandah of the Court where the litigants generally sit, but the Chaprasi did not give a proper call and he could: not hear it. After some time he came to know that the complaint had been dismissed for default.
3. This application was heard on 19th March, 1962 and the learned Magistrate by his order dated 22nd March, 1962 rejected the application saying that the case was called at 10.35 A, M. but the complainant and his counsel were absent. Then the case was called four times but the complainant did not appear. In the opinion of the learned Magistrate there was no sufficient ground shown for the complainant's absence.
4. Section 247 of the Code of Criminal Procedure empowers a Magistrate to acquit the accused if on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the com-plant does not appear. The Magistrate is also given discretion to adjourn the hearing of the case in spite of such default on the part of the complainant if for some reasons he thinks proper to do so. The Magistrate may also proceed with the case after dispensing with the attendance of the complainant if in his opinion his personal' attendance is not necessary.
5. The contention of the learned Counsel for the appellant is that the case was called during the early hours of the day. That the Magistrate could not have passed an order of acquittal until the complainant failed to appear till the close of the day. It is urged that a Magistrate is bound to wait until the close of the day before he passes an order of acquittal under Section 247 of the Code of Criminal Procedure. In support of this contention reliance is placed on Ram Narain v. Mool Chand : AIR1960All296 and Public Prosecutor v. T.S. Prasad : AIR1960AP193 .
6. In the case of Ram Narain, : AIR1960All296 Mulla, J. while construing section 247 of the Code of Criminal Procedure took the view that the words 'upon the day' appearing in section 247 should be given their natural meaning and should not be interpreted to mean the moment in the day when case is called. The learned Judge in sup-port of his view referred to the provisions of Order IX Rule 8 of the Civil Procedure Code where 'the phraseology employed is 'where the plaintiff does not appear when the suit is called on for hearing the court shall make an order that the suit be dismissed.
The learned Judge did not agree with the view taken by the Madras High Court in Kuttiyali v. Pari Makri ILR 7 Mad 356, Nagarambilli Tonkya v. Jagannatha AIR 1926 Mad 1009 and Natesa Naicker v, Man Gramani, AIR 1948 Mad 45.
I am however, unable to subscribe to the above view taken by the learned Judge. If the above interpretation is given, to the words 'upon the day' it would lead to absurd consequences. Not only that the Magistrates will have to welt till the close of the day for disposing of the cases, to which section 247 applies but it would also encourage negligence and aches on the part of the complainants. A complainant who is required to produce his evidence on a day fixed by the court would very well be able to escape the consequences of not producing his evidence by appearing before the court at the close of the day when there would be no option left to the court but to adjourn the case.
Another learned Judge of the same High Court in Naresh Prasad Mittal v. Mahavir Singh : AIR1960All507 did not think it proper to go to that length in interpreting the words 'upon the day'. It was observed in that case that:
Without saying that the court in every case must wait for the whole day before passing an order of dismissal, it must be said that the court will also not be justified in dismissing the complaint immediately upon calling the case and the complainant not appearing.
A reasonable view has to be taken in every case and it depends upon the circumstances of each case whether the Magistrate has acted reasonably in passing the order or not and the High Court when it finds that in any particular case the Magistrate acted immediately and has dismissed the complaint in a haste resulting in injustice, will set aside the order.
7. With respect I agree with the view taken in this case. Though the order of dismissal is almost fatal for a complainant and it must be exercised with caution, but that cannot lead to the meaning that the court cannot pass an order of acquittal, under Section 247 of the Code until the close of the day. The observations in the case of : AIR1960AP193 also should be read in the light of the facts of that case. In that case the complainant had appeared before the Court on the date of hearing but was informed by the clear of the court that the Magistrate had gone on camping and he was not likely to come back for sometime. The complainant accordingly went to have his midday meal at 1 0' clock after intimating the clerk of the court that he would be returning by half past one. The special Magistrate returned from camp, attended the court during interval, called the case and acquitted the accused. In there circumstances it was observed 'that in all cases where the complainant appears in the court on the day of hearing, section 247 does not apply at all. It is only when the complainant does not appear at all during the Court hours, on the day of hearing, that the Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. Such absence may, in most cases, be due to justifiable cause. Such temporary absence from Court after complainant had appeared gives no jurisdiction for the Magistrate to take action under S. 247, Criminal Procedure Code. The words does not appear' have only one meaning in the context, that is the failure to appear must have been during the working hours of the Court Even in such a case, the Magistrate is bound to satisfy himself that there are no justifiable reasons to adjourn the hearing of the case.
The Madras High Court in ILR 7 Mad 356 which was referred by Mulla, J. in his judgment took the view that the order of the Magistrate in acquitting the accused under Section 247 of the Code of Criminal Procedure is not without jurisdiction even if it might have been passed before the close of the day. This case was followed in AIR 1926 Mad 1009. The Bombay High Court in re, Jamnabai Maghji, AIR 1934 Bom 130 also agreed with the observations made in Tonkya's case, AIR 1926 Mad 1009, Broom file J. observed.
it was held there that a Magistrate is entitled to call up a summons case at any time of the day to which it is posted and to acquit the accused under S. 247, Criminal P. C, if the complainant is not then present. He is not bound to wait for the complainant to appear at any time before the closing of the day in order to take up and dispose of a case. With respect I entirety agree and I have already said the same thing in the course of my judgment.
The order of the Magistrate therefore, in this case cannot be said to be without jurisdiction It appears from the order of the Magistrate that before passing the order of acquittal he had called the case several times. On behalf of the respondents an affidavit has been filed to the effect that the ease was first called at 10-30 a. m. and then after every half an hour it was called four times and the order of acquittal was eventually passed at 12.45 P. M.
The application submitted on behalf of the complainant for restoration of the complaint does not even mention the time of its presentation. It is also not stated in the application that the witnesses of the complainant were present on that day. The complainant has also not cared to file any counter affidavit before this Court although opportunity was given to him to do so on the last date. It cannot therefore, be said in the circumstances of this case that the Magistrate acted arbitrarily in the exercise of his discretion.
The Magistrates have undoubtedly powers to pass orders of acquittal due to the absence of the complainant when the case is called on for hearing. But such orders should not be passed in the early hours of the day and they should wait for a reasonable time for the appearance of the complainant. In the present case however, the reason given by the complainant for his non-appearance does not appear to be correct. As remarked by the learned Magistrate the case was called several times but the complainant did not appear. I, therefore, do not see any grounds to interfere with the order of acquittal.
8. The appeal is therefore, dismissed.