1. The petitioner in this case preferred a complaint Under Section 426, I.P.C., against the accused which was fixed for hearing on 23rd November 1931. When it was called up on that day at 11 o'clock the complainant was absent and consequently the accused were acquitted Under Section 247, Criminal P.C. In the affidavit the complainant says that he had a case in the civil Court on that day and that he went there to take leave of that Court and when he came back at 11-20 a.m. he found that the case had been called 10 minutes before and the accused were acquitted. He says in para 9:
It is common practice of Magistrates to pass over cases when complainants are absent when cases are taken up in the forenoon and take up cases sometime later in the day.
2. The legal argument attempted before me is that this being a summons case, the case has to begin by examining the accused Under Section 242 and that the accused cannot be acquitted unless they are present there. If the accused are n,ot there the procedure Under Section 242 cannot take place and so the accused cannot be acquitted Under Section 247, Criminal P.C., owing to the absence of the complainant. There is however no case quoted which lays this down. In High Court Proceedings 17th August 1875 2 Weir 307 summons had not been served on the accused and it was held that in such cases the dismissal of the complaint on the ground that the complainant did not appear on the day fixed for hearing was illegal. That case was clearly different from the present. Section 247, Criminal P. C. says:
If the summons has been issued on complaint and upon the day appointed for the appearance of the accused...the complainant does not appear, the Magistrate shall...acquit the accused.
3. It is not stated that the accused must appear but it merely says that the accused may be acquitted if the complainant does not appear on the day appointed for the appearance of the accused. As regards the matter of discretion I shall certainly not interfere in a case of this sort as it will probably lead to the impression that it is illegal for the Court to dismiss a case in the morning if the complainant is absent and that it must wait till the afternoon. If the complainant is absent when the case is called up there is nothing illegal in the Magistrate's dismissing the case. What latitude he will grant is entirely discretionary. The Revision Petition fails and is hereby dismissed.