P (PLP)

Hussain etc, Respondents, In Person. ORDER.‑On 26 September 1949 Muhammad Ramzan instituted a complaint under section 447 A. P. C. against Hussain etc. in the Court of Sub‑Judge, Magistrate, Bhimber. The prosecution evidence was concluded on 29th November 1949. The defence evidence was recorded upto 7th December 1949. After that date the case was adjourned for the evidence of certain defence witnesses, who had not been served from time to time. On 20th March 1950 when the case was last fixed for the recording of the defence evidence the parties absented themselves. The Magistrate dismissed the complaint under section 247 Criminal Procedure Code and acquitted the accused. Muhammad Ramzan, complainant, preferred a petition for revision in the Court of Sessions Judge, Mirpur praying that the order of acquittal dated 21st March 1950 may be quashed and the Magistrate might be ordered to proceed with the case in accordance with the law. The learned Sessions judge has recommended that the order of acquittal be set aside as the absence of the complainant on. 21st March 1950 was not inten tional and the Magistrate be directed to decide the case on the merits. It is contended on the complainant's side that the complainant did not appear when the case was called for hearing on 21st March 1950 on account of heavy rain. An affidavit has also been filed to that effect on behalf of the complainant. The fact that the accused also did not appear in Court on 21st March 1950 leaves no room for doubt that the failure of the parties to appear in Court on 21st March 1950 was not intentional but resulted from a cause beyond their control. The question, however, is whether the learned Magistrate was justified in dismissing the complainant and acquitting the accused after the prosecution evidence in the case had been concluded and the case was being adjourned only on the request of the accused from time to time for the defence evidence. Section 247 Criminal Procedure Code runs as follows:

"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, not withstanding anything herein before contained, acquit the accused, unless for some reason so he thinks proper to adjourn the hearing of the case to some other day : 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". It is argued that the words used in the section give a discretion to the Magistrate to adjourn the case and give the complainant further opportunity instead of acquitting the accused to proceed with his trial if it is established that the complainant was prevented by some cause beyond his control from appearing in Court on the date the complaint is dismissed. In support .of this contention reliance has been placed on rulings of different High. Courts; wherein it is laid down that when the complainant is prevented by heavy floods or by illness for appearing then he should be given a further opportunity of proceeding with the trial instead of acquitting the accused. In this respect A. I. R 1938, Lah. 121, has also been quoted. It was held in the last mentioned case that section 247 Criminal Procedure Code does not, apply when the entire evidence in the case has been concluded and the case has been adjourned only for judgment without the attendance of the complainant having been specially directed vide' Cal. 46,

867. On the opposite side it has been contended on the authority of A. I R. 1926, Mad. 1009, that the absence of the complainant at the time when the case is taken up for hearing is sufficient justification for the Magistrate in dealing with the case under section 247 Criminal Procedure Code and acquitting the accused. The proper interpretation of section 247 makes it obligatory upon the Magistrate to acquit the accused if the complainant does not appear unless he thinks proper to adjourn the hearing of the case to some other date. In other words it is necessary for the Magistrate before dismissing the complainant and acquitting the accused under section 247 to ascertain whether the complainant had been dilatory in the prosecution of the case or not before ordering the dismissal of the complaint. If the Legislature intended to deprive the Magistrate of the discretion in the, matter then it was un‑necessary to provide in the section that the com plaint shall not be dismissed if the Magistrate thinks proper to adjourn the hearing of the case to some other date. The use of afore‑mentioned words in the section to my mind cast a duty upon the Magistrate before dismissing the complaint to find out whether the complainant's absence was intentional with a view to prolong the case or due to causes beyond his control. I am, therefore, of opinion that in the circumstances of the case the order of the Magistrate acquitting the accused in this particular case on the ground of the absence of the complainant cannot be substained. I, therefore, accept this petition for revision, set aside the order of acquittal passed by the Sub‑Judge Magistrate, Bhimber on 21st March 1950 and direct the successor of the Magistrate who has been transferred to decide the case on merits after finishing the defence evidence. The parties are directed to appear in the trial Court on 15th April 1951. K. M. A. Petition accepted.