The absence of the complainant without sufficient cause entitles the accused to an acquittal under Section 247 of the Code of Criminal Procedure.

Ramratna Singh, J.

1. This is an appeal under Sec. 417 (3) of the Code of Criminal Procedure by a complainant against an order of acquittal passed under Sec.247 of the Code.

2. The respondent was the Mutawalli or trustee of a Sunni Waqf property. All such waqfs are, since the enactment of the Bihar Waqf Act, 1947, under the control of a body known as Bihar Subai Sunni Majlis-E-Awaqf, presided over by a person known as Sadar. There is a provision in the Act for the prosecution of a trustee for his failure to furnish accounts to the Majlis in respect of the waqf property in his charge.

It is said that the respondent failed, in spita of the orders of the Sadar, to furnish the accounts or a report about the affairs of the waqf estate and to carry out other orders in respect of the samp. For this failure, an official of the Majlis, called Nazir, filed a complaint with the authority of the Sadar in writing as contemplated by Sec. 66 (1) of the said Act. The respondent appeared and contested the allegations made against him.

3. The case has a chequered career. A complaint was filed on the 3rd November, 1953. There are petitions before the Sessions Judge and the High Court on different occasions, and the proceedings had to he stayed several times. When the last revision petition was rejected by Sessions Judge and the record was received, the trying Magistrate passed an order on the 5th February 1958 for the issue of notice against the accused for his appearance on the 23rd December 1958 along with notices against his sureties to produce him on that date or the next date, the 23rd December 1958, the service reports of the notices, which had to be served in another district, were not received and fresh notices were issued; The case was subsequently transferred to the court of another Magistrate, who issued summons to the accused and notice to the bailor on the 16th Junuary 1959. The service reports were not received on the next date, the 16th February 1959. On the last date, that is, the 4th March 1959, the accused was present and he filed two petitions. One petition was for bail. In the other petition the accused prayed for his acquittal under Sec.247 on the ground that the complainant was absent. Hazri had been filed by the law, agent of the complainant. But the law agent also did not respond on repeated calls by the court; and at about 1-40 P.M. the Magistrate acquitted the accused under Section 247. This appeal is directed against this order of acquittal.

4. The learned Advocate for the appellant referred to one of the grounds mentioned in his petition, supported by an affidavit, that the law agent of the complainant remained in court till about 1 P.M., but he left the court when he found that the accused had not turned up till then; and the accused taking advantage of this situation appeared thereafter and got the complaint dismissed. A copy of this petition was, however, not served on the respondent or his advocate, who came to know of this allegation, for the first time, on the day the appeal was heard.

Thereafter the respondent filed a counter-affidavit on the 7th February 1961 stating that on the 4th March 1959, neither the complainant nor his lawyer appeared in the Magistrates court from 11 A. M. to 1-45 P. M. and consequently, the Magistrate passed an order of acquittal. A copy of this counter affidavit was made over to the advocate for the appellant on the 7th February 1961. At the request of the respondents advocate this appeal was again listed, but on the date fixed no one on behalf of the appellant appeared in this Court.

It is, therefore, difficult to accept the statement made in the affidavit filed on behalf of the appellant. Moreover, when the law agent had filed hazri on the 4th March 1959 in the Magistrates court, be ought to have waited till the rising of the court and he was not justified in leaving the court at about 1 P. M. without any intimation to the court in writing or otherwise. It is also remarkable