S. Murtaza Fazl Ali, C.J.
1. This is an application against an order of acquittal passed by the trial Magistrate in the following circumstances.
2. A complainant under Section 448 Ranbir P. C. was filed before the City Munsiff Magistrate by the complainant on the basis of which a bailable warrant of arrest was in the first instance issued against the accused. Thereafter on 29th January 1968 while the accused and his counsel were present, the complainant was absent and did not appear despite repeated calls. The learned Magistrate therefore acquitted the accused under Section 247 of the Criminal P. C. treating the case to be of the nature of a summons trial. Against this order the complainant moved the learned Addl. Sessions Judge for making a reference to this Court which application was also dismissed by the learned Addl. Sessions Judge who was of the view that the order passed by the trial Magistrate was legally correct.
3. Learned Counsel for the petitioner submitted before me that as a warrant had been issued in the first instance the case should have been tried as a warrant case and the learned Magistrate had no jurisdiction to pass an order of acquittal under Section 247 merely because of the absence of the complainant. In order to appreciate the contention of the learned Counsel it will be necessary to refer to the relevant provisions of the Criminal P. C. Section 247 clearly appears in Chapter 20 which relates to the trial of summons cases by the Magistrate. It is, therefore, manifest that 3. 247 clearly applies for trial of summons cases. The fact that a warrant was issued in the first place or a summons is not germane to the application of Section 247. The main point to be seen is as to whether the charge alleged against the accused was a summons case or a warrant case. A reference to Section 448, would show that the maximum punishment provided for this offence being one year and fins which may extend to Rs. 1,000; it is a summons case within the meaning of Sub-section (1)(r) of Section 4 of the Criminal P. C. According to the definition given in Section 4 (1)(v)(Supra) all cases in which the offence is : punishable with death, imprisonment for life or imprisonment for a term exceeding one year are warrant cases and other cases not answering this description are summons oases. In the instant cases the punishment provided under Section 448 does not exceed a year there can be no doubt that it is a summons case. Then mere fact that a warrant was issued by the Magistrate would not alter the nature of the case which will have to be determined in accordance with the procedure of a summons case in Section 4 (1)(v)(Supra).
4. Once it is held that the complaint instituted against the accused was in the nature of a summons, then the Magistrate has not only a discretion to acquit the accused in the absence of the complainant but a legal duty to do so unless the Magistrate was of the opinion that the attendance of the complainant was not necessary and could be dispensed with. The learned Magistrate has no where, given any finding in the present case that the presence of the complainant was not necessary. In fact it was the duty of the complainant to have produced evidence before him. I am fortified in my view by AIR 1948 Mad 45. Of course there are some authorities which take the view that the discretion to acquit an accused should not be exercised where the complainant has nothing to do and his presence is not essential. But as I have already observed in the present case the complainant bad not completed his evidence and therefore his presence was essential on the date fixed. In these circumstances therefore the order of the Magistrate acquitting the accused was fully justified by the provisions of Section 247 and I do not see any reason to interfere. The application is therefore dismissed and the rule is discharged.