1. This reference is based upon a misreading of Sections 224 and 247 of the Code of Criminal Procedure. Section 244 lays down that 'if the accused does not make an admission, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as be produces in his defence.' The section does not say that the complainant himself has got to be examined. The words ' the Magistrate shall proceed to hear ' are also used in reference to the accused in the same section, which supports the view which we have expressed. Then, Section 247 provides that ' 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 here in before contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.'
2. On the date fixed for the hearing of this case, namely, the 21st June 1919, the complainant was reported to be ill. The case was adjourned to the 3rd July. It was again adjourned on that day. On the 16th July, the complainant was reported to be ill. On the 31st July the man was still ill, but the Magistrate said that no further adjournment would be granted. On the 6th of August two prosecution witnesses and six defence witnesses were examined and cross-examined. On the 7th, the prosecution filed a petition asking for processes against some more witnesses. On the 28th August the complainant was produced in Court in a very weak state of health and was tendered for cross-examination. But the defence refused to cross examine him. Witnesses were examined and cross-examined and then discharged. The accused was convicted on that day and was sentenced to pay a fine of Rs. 60.
3. It is contended that the non-examination of the complainant vitiated the whole of the proceedings, Section 247, however, does not deal with the examination of the complainant, but his appearance, and Section 244 does not say that he is to be. examined but it only says that he shall be heard.
4. It is further contended that the accused ought to have been acquitted on the 6th August as the complainant had hot appeared on that day. But Section 247 clearly gives power to the Magistrate to adjourn the case for sufficient reason. The Magistrate adjourned the case. We do not think that the proceedings were vitiated because he examined some witnesses on that day. We do not see that the accused was in any way prejudiced. He cross-examined the prosecution witnesses and examined witnesses in his defence. We think the requirements of the section have been complied with and inasmuch as no prejudice has been shown so far as the accused is concerned, we do not think that we ought to entertain this reference.
4. We also notice that no notice has been served upon the complainant. He is interested in this matter as he has been allowed compensation out of the fine imposed, he is entitled to be heard.
5. We have had no opportunity of hearing him and that is an additional ground for not setting aside the original order.