The main legal point established in the judgment is that the provision of S.247 Cr.P.C. applies to the absence of the complainant on the date fixed for the appearance of the accused, but not to the date fixed for delivery of the judgment. Additionally, the provision should not be used to expedite the case without proper notice to both parties.

1. The State has filed this appeal against the order passed by the Additional First Class Magistrate of Muvattupuzha acquitting the accused under S.247 Cr. P.C.

2. The complaint was filed by the Range Officer, Kothamangalam Range in November 1960 against the two accused for an offence under S.27 of the Forest Act, for unauthorised entry and cutting of trees from the reserve forest. The complainant finished all his evidence, the accused were questioned under S.342 Cr. P.C., defence witnesses were examined and the case was posted for disposal to 19-7-61. From that date it was adjourned to 26-7-61. On that day it is seen to have been reposted to 28-7-61. There is nothing to show that the date of posting was notified. The complainant was not present and the learned Magistrate proceeded to acquit the accused under S.247 Cr. P.C.

3. S.247 Cr.P.C. reads:

" 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 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 complainant is not necessary, the Magistrate may dispense with his attendance, and proceed with the case."

4. The principle embodying the section appears to be, that from the first day on which the case is fixed for appearance of the accused and at all subsequent adjourned hearings of the case, during which the court has to take some step or other in the progress of the; trial, the presence of the complainant before the court is insisted on and if he absents himself on any such hearing date his complaint is liable to be dismissed and the accused acquitted, unless the court in its discretion for sufficient reasons adjourns the hearing of the case. The object of the section is to prevent the complainant from being dilatory in the prosecution of the case and if he does not care to be present when the case is called on, the accused is entitled to an acquittal, unless the Magistrate chooses for reasons he thinks proper to adjourn the case.

5. The proviso to the section which has been substituted for the old one by the amending Act 1955 has omitted the word 'public servant' and the Magistrate has been given discretion to dispense with the attendance of the complainant whether he be a public servant or not, if the Magistrate is of opinion that his personal attendance is not necessary. Thus the section allows a discretion to the Magistrate and it has to be exercised judiciously. It is not contemplated that the order of acquittal should be a matter of mere routine and follow automatically upon the absence of the complainant.

6. A reading of the section would show, that it applies to a case of absence of the complainant on the date fixed for the appearance of the accused or any other date of adjourned hearing, but it does not apply to a case where the complainant is absent on the date fixed for delivery of the judgment. If on such date the complainant is absent and the attendance of the complainant on the date was not specifically directed by the Magistrate an order of acquittal of the accused on the ground of the absence of the complainant is clearly erroneous.

In support of this position reference may be made to the decisions in Girish Chandra Das V. Bhusan Das (I.L.R. 46 Cal. 867); Emperor v. Jangusingh (A.I.R.1923 Nag. 158); Mohideen Batcha v. Mahoomia Sahib (1933 M. W. N. 1271) and Muhammad Hayat Muhammad Yar v. Daulat Khan Saleh (A.I.R.1938 Lah.121).

7. In this case the evidence on both sides were over and it was posted for judgment. The notes paper does not show that the complainant was specifically directed to be present at the time of the pronouncement of the judgment. After the date of posting the case for jud