The word `day' in Section 247 CrPC means the point of time when the particular case is called on for hearing and not the whole working day of the Court. The Magistrate has no jurisdiction to set aside the acquittal made by him under Section 247 CrPC. However, the High Court can interfere in an appeal under Section 417(3) CrPC and set aside the acquittal if it is satisfied that the complainant was prevented by sufficient cause from attending the court on the appointed day.

VENKATESWARA RAO, J.

( 1 ) THIS criminal Appeal, which is preferred by the complainant in CC. 375/65 on the file of the judicial Second Class Magistrate, Uravaents (accused) under Sec. 247, Cr. P. C. , has been referred to the Bench for a decision by our learned brother Venkatesam, J, questions involved viz. , whether the word `day in Section 247 Criminal P. C. means the whole working day of the Court or only the time when the case is called for hearing and whether even if the Magistrate has jurisdiction to set aside the acquittal made by him under Section 247 Criminal P. C. , the High Court is not entitled to go into the sufficiency of the cause of the absence of the complainant and set aside the acquittal if satisfied about it.

( 2 ) THE appellant filed C. C. 375/65 against the respondents under Sections 328 and 352 I. P. C. After the examination of the complainant and his witness was concluded, the case was adjourned to 25/9/65 to enable the respondents to examine the Town Inspector as a defence witness on their behalf. When the case was called on for hearing that day, neither the complainant nor his pleader was present with the result that the learned Magistrate passed an order acquitting the respondents under Sec. 247, Criminal P. C. in the following terms;"the case was called on for hearing today to which it had been posted/adjourned. The complainant not being present either in person or by Pleader, accused is acquitted under Sec. 247, Criminal P. C. "aggrieved by this order, the complainant preferred this appeal which, as already stated, has been referred to the Bench having regard to the contentions raised before out learned brother. Section 247, Criminal P. C. reads thus:"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 herein before contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day". The section is thus mandatory in its terms and makes it obligatory on the Magistrate in all summons cases in which the complainant fails to make his appearance on the appointed day, to acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day. This is precisely what the learned Magistrate did in the instant case.

( 3 ) THE complainant swore to an affidavit in this case stating that he did attend the Court on 25-9-65 but could reach it only at 11. 45 A. M. on account of late running of the bust that day and that he was informed by his advocate, who too happened to attend the Court late that day, that his case was called and the accused were acquitted at 11. 40 A. M. The learned counsel for the appellant argued that the word `day occurring in Section 247, Criminal P. C. , means the whole working day of the Court and not merely the point of time when the case is called on for hearing and that the Court below should therefore have waited till 5. 00 P. M. , when alone the working hours of the Court came to a close, before exercising its jurisdiction, he relied upon a decision of this Court in Public Prosecutor v. T. S. Prasad, AIR 1960 Andh Pra 193, wherein Sanjeeva Rao Naidu, J. , as he then was, observed as follows;"in all cases, where the complainant appears in the Court on the day of the hearing this Section does not apply at all. It is when the complainant does not appear at all during the Court hours, on the day of hearing, that the Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. Such temporary absence from Court after the complainant had appeared gives no jurisdiction for the Magistrate to take action under Sec. 247, Cr

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