JUDGMENT
E.K. Moidu, J.
1. This is an appeal against an order made by tho Sub-Magistrate, Punalur,dated 27-9.1968 acquitting the respondent on the ground that the complainant was absent.
The short order made by the Sub-Magistrate is as follows :
The case was called on for hearing to.day to which date it had been posted. The complainant not being present either in person or by pleader the accused is acquitted Under Section 247, Criminal P.C.
The complainant P, W. 1 Bhageerathi Ramamani filed the complaint before the Sub-Magistrate on 3.5-1968 against the respondent accusing her of offence Under Section 323, IPC in regard to an incident at 4.30 p. m. of the same day, the sworn statement of P.W. 1 was taken on 13-5-1968, thereafter the case underwent three adjournments. On 24-6-1968 the ohief examination as well as the cross-examination of P.W. 1 was conducted. Again the case was adjourned and after two adjournments the case came up for-hearing on 24-7-1968 on which day another witness waa examined aa P.W. 2 (Janu Amma). But her cross-examination was put off at the instance of the accused.
The next hearing of the case was on 29-7-1968. On that day P.W. 1 the complainant was absent. When the case was called Advocate Sadasivan, on behalf of the complainant’s advocate Bhaskaran, represented to the Court for adjournment of the case on behalf of the complainant. The learned Magistrate, without giving an adjournment, acquitted the accused for her absence. Immediately thereafter, Advo-oate Bhaskaran came to the scene and presented an application for adjournment. By that time the order of acquittal having been passed, the Court was not prepared to pass any order in that petition; but on the other hand, return the petition to the advocate. Both the advocates have filed affidavits in Bupport of the above versions. The question for us to consider is whether in the oircum. stances of the case the order of acquittal passed by the learned Sub-Magistrate is correct.
2. Section 247 of tho Criminal Procedure Code is as follows :
247. If the Bummona had 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 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 oomplainant is not necessary the Magistrate may dispense with his attendance and proceed with the case.
3. The above Section together with the pro. viao makes it clear that it is incumbent upon the Magistrate to pass a judicial order taking into consideration the circumstances of eaoh case. There haa been some controversy ai regards the time of th9 order to be passed in similar cases, A natural meaning has to be given to the word ‘day’ in the phrase “upon the day appointed for the appearance” occurring in S, 247 of the Criminal Procedure Code. In some of the decided cases the ‘day is interpreted to mean the whole of the working hours of the day and not the moment when the case is called. In other line of cases it is held the ‘day’ in the phrase would mean the time when the case waa called for hearing. So much so, where the complainant appeared later in the day or he was present earlier in the day could furnish no adequate reason for hia absence at the moment when the case was called.
These two aspects of the case came up for consideration in our High Court before Smt. Justice Anna Chandy in Kunhumon v. Kotha, 19G2 Ker L T 781 : (1963 (1) Cri L J 667). On a review of the case law on these ttvo aspects of the question the whole issue has now whittled down to the following proposition which ia quoted at page 78-1 of the above decision. It is as follows :
The intention of the legislature in enacting Section 217 is clearly to discourage dilatory tactics on the pirt of the complainants which might lead to the harassment of accused persons and the waste of public time. It is equally clear that the power given by the Section should not be bo used as to deny justice to complainants who in good faith approach the Court for redress of their grievances. It is neither possible nor desirable to specify any particular length of time as the period the Magistrate should wait before acquitting the accused: The discretion hag to be used in a judicial manner. In other words the Magistrate should take into consideration all the relevant circumstances before deciding whether to acquit the aocused or to adjourn the case to another day.
The same view is expressed by Anna Chandy J. in another decision reported in Govindan Nambiar v. Chidambareswara Iyer, 1961 Ker L T 797: (1962 (2) (Cri L J 547). It is to the following effect:
It gives the Magistrate a discretion not to acquit the accused if he thinks that there are proper reasons for adjourning the caae . . . Section 247 is evidently intended to prevent dilatory tactics on the part of complainants and consequent harassment to accused person. Like any other, the power under tbia Section also has to be used judicially and judiciously and not in a manner that makes the remedy worse than the disease. It is not proper to throw out a case in a hasty or thoughtless manner when the complainant has proved his bona fides and shown himself vigilant in proseouting the accused.
Similar view ia expressed in a decision reported in State of Madhya Pradesh v. Abdul Kadir Khan . It is as follows:
Even if the complainant is a private party the Magistrate has been given discretion to proceed with the case if hia presence is not necessary. It means that the Magistrate be-fore deciding to dismiss the complaint and acquit the accused in exercise of powera Under Section 247, Criminal P.C. has first to, consider if he is unable to proceed with the case with-out the presence of the complainant and if he is not, then he has to consider if the absence of the complainant is without any lawful excuse or not. The Magistrate has therefore to exercise the powers of dismissal of the complaint Under Section 247, Criminal P.C. with judicial discretion.
A Division Bench of the Punjab High Court in State v. Gurdial Singh Gill made tho following observations with reference to the provisions contained in 8. 247, Criminal Procedure Code :
The object of this provision of law is to prevent the complainant being dilatory in the prosecution of hig case but it nowhere lays down that in all cases where the com-plaitiant is found to be absent on the date of hearing, the ease haa to be dismissed. On the other hand, it vests discretion in the Magistrate to adjourn the hearing of the case to some other date, or to proceed with the case even if the complainant is not prosent at the trial of a summons case. The last part of Section 247, Criminal P.C. clearly lays down that the Magistrate need not dismiss a complaint, if he is of opinion that it would be proper to adjourn the hearing. From this it is evident that the dismissal of the com. plaint on account of the complainant’s absence is not to follow aa a matter of course but before passing such an order the Magis. trate has to apply hia mind to the facts of the case before him and to consider whether it would not be proper to adjourn the hearing instead of dismissing the complaint.
On a review of the above it is necessary to refer the circumstances which led to the acquittal of the accused in the instant case.
It may be noted that the case in question underwent six or seven adjournments before the caae came up for final hearing oa 29-7-1968, Though P.W. 1 was examined as early as on 24-6.1968, the next examination of wit. ness took place on 24-7 1968. On every previous hearing the complainant used to bs present in Court. It was at the instance of the accused that P, W. 2 was not cross exa. mined though the complainant was present. It can be seen, therefore, that the complainant has not shown any lachoa in the conduct of the case. The learned Magistrate passed the order in a printed form in the ordinary course without applying his mind to the circumstances of the case. There was an application orally made by an advocate for an adjournment. On the same day the advocate concerned in the caee made an application alleging that P.W. 1 was laid up. The learned Magistrate did not go into the bona fides of that question. In the cirourmtances of the case it cannot be eaid that the learned Magistrate has applied his mind ass to the allegation made by the complainant as to her inability to attend Court on that particular day. The complainant having shown diligence in the prosecution ol the case, it cannot be heard to say that she may not be given a chance to prosecute her case. Therefore I am of opinion that the learned sub.Magistrate did not dispose of the case in a judicial or judicious manner and therefore the order of acquittal requires reconsideration. In view of what has been stated above there can be no manner of doubt that the learned Magistrate did not apply his mind properly to the requirement of the statutory provision. Consequently the appeal has to be allowed and the order of acquittal is hereby set aside. The case shall go back to the learned Magistrate for disposal in accordance with law.