C.B. Capoor, J.C.
1. This appeal by the State is directed against an order of a Magistrate Second Class Bilaspur whereby in the exercise of powers conferred by Section 247, Cr.P.C, the respondent, was acquitted of an offence under Sections 32 and 33 of the Indian Forest Act, 1927. The Divisional Forest Officer Bilaspur Forest Division sent to the District Magistrate Bilaspur three challans on 6th August, 1960, and one of those No. 20 pertained to the respondent. The District Magistrate forwarded the letter received from the Divisional Forest Officer to the Magistrate Second Class Sadar for disposal. The Magistrate took cognizance of the case and the respondent wassummoned. The complainant's evidence was closed on the 28th February 1961 and 14-3-61 was fixed for further proceedings. The presiding officer did not attend the Court on that date or on the date next fixed for the disposal of the case. The case was taken up on 16-5-1961. The complainant was not present but on Ms behalf one Shri Shiv Dev Singh Range Officer was present. The learned Magistrate, however, dismissed the complaint.
2. Section 247, Cr. P. G, runs as below:--'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 he 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:
Provided that, where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance, and proceed with the case.'
3. The proviso to the said section was substituted by the Code of Criminal Procedure (Amendment) Act No. 26 of .1955. Prior to the aforesaid amendment the proviso to the section ran as below :
'Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case.'
4.Jt will have been noticed that the scope of the proviso has been widened as a result of the amendment and that while prior to the amendment the Magistrate had the power to dispense with the presence of the complainant it he happens to be a public servant under the amended proviso the Magistrate has been em-powered to dispense with the presence of a complainant irrespective of the fact whether he happens to be a public servant or not. The object underlying the proviso appears to be that if the presence of the complainant is not necessary for the purposes of the case the Magistrate should proceed with the case and in forming his opinion as to whether the presence of the complainant is necessary or not he should act judicially and not arbitrarily or capriciously. It was not the intent of the legislature that the Magistrate should snap at the aforesaid provision if a complainant absents himself from the Court irrespective of the fact whether for the further progress of the case his presence be or be not necessary. The aforesaid section Was not put on the legislative anvil to provide the Magistrates with a short cut to get rid of a ease.
5-6. In the case of Excise Department v. Chota Hanmanthu, AIR 1951 Hyd 88, the facts were as below :
A complaint was filed against the accused for an offence under the Abkari Act. On the date fixed for the evidence for the defence no step had been taken by the accused to summon the witnesses nor had he filed a list of thewitnesses. The Abkari Prosecutor was not present on that date and the learned Magistrate dismissed the complaint. The case was under the Hyderabad Criminal Procedure Code but the provisions of Section 219 of that Code appear to be substantially the same as those of Section 247, Cr. P. C, prior to its amendment. It was held that the learned Magistrate should have dispensed with the presence of the complainant and proceeded with the case and not dismissed the complaint.
7. The cases of the Kutch Government v. Ishwarlal Thakoradas, AIR 1949 Kutch 22 and Joseph v. Anchala Fernandez. AIR 1951 Tray-Co 25 and C. R. Alwares v. Habool, AIR 1959 Raj 100, were under the Criminal Procedure Code, 1898.
8. In the Kutch case a complaint was filed by a public servant who had been transferred by the time that it was taken up for the recording of evidence. He was absent on the date fixed for the recording of evidence but the other prosecution witnesses were present. The Magistrate dismissed the complaint. It was held that the case was not such which could not have been proceeded with in the absence of the complainant and the Magistrate should have proceeded to examine the witnesses for the complainant who were present on that day and he did not exercise a sound discretion in dismissing the complaint.
9. In the Travancore-Cochin case the evidence of the complainant who was a public servant had already been recorded. He was absent on a subsequent date and the learned Magistrate dismissed the complaint. It was held, by a Division Bench of the High Court that the Magistrate did not exercise a judicial discretion in dismissing the complaint specially when the statement of the complainant had been recorded and an Advocate had been engaged to represent the complainant.
10. In the third case the complainant had finished all his evidence and the defence evidence had begun but not concluded. The case was adjourned and on the adjourned date complainant was absent though his counsel was present. The Magistrate trying the case acquitted the accused on account of the absence of the complainant. The matter was taken up to the High Court and it was held by a Division Bench that the Magistrate did not exercise a sound discretion in dismissing the complaint. In the course of the order it was observed that before acquitting an accused on, the default of the complainant, it was that duty of the Magistrate to see whether the personal attendance of the complainant was necessary on the date or not.
11. In the instant case it does not appear either from the order-sheet or from the order under appeal that the presence of the complainant was necessary on 16-5-1961 for the further progress of the case and the learned Magistrate did not act judicially in dismissing the complaint. Section 247, Cr. P. C, is a much abused section and cases have come to my notice when Magistrates have taken recourse to that section just to get rid of a case. This, to say the least, is anabuse of the process of the Court and cannot foe countenanced.
12. I, therefore, accept the appeal, set aside the order of acquittal and remand the case with the direction that it be disposed of in accordance with law by the District Magistrate or by a Magistrate other than the one who made the order under appeal. The respondent is directed to appear in the Court of the District Magistrate on 25-4-1962.