The main legal point established in the judgment is the need for the magistrate to use discretion and adjourn the case if there are proper reasons for the complainant's absence, and not to hastily acquit the accused.

1. This appeal is directed against an order of acquittal passed by the First Class Magistrate, Perintalmanna under S.247 of the Criminal Procedure Code. The appellant the Executive Officer of the Perintalmanna Panchayat Board filed a complaint against the accused in the case for infringing the Panchayat Rules by burying dead bodies at a place other than a licensed burial ground. The complainant examined his witnesses, but the cross-examination was deferred at the request of the defence counsel The case was posted for further proceedings on 17-12-'60 on which date at the instance of the defence counsel the case was again adjourned to 2-1-1961. On 2-1-1961 the accused and the defence counsel were absent. The complainant was also a little late, but his counsel Sri C.P. Mohammed was represented in court by another Advocate Sri K.P. Thomas. Shortly after 11 A.M. Sri Thomas was called into the chambers of the Magistrate and the case was called. He represented that the complainant was on his way to the court and that his counsel Sri C P. Mohammed was ready with the case and would be in court presently. Sri Thomas was asked to fetch the complainant and his counsel. Sri Thomas immediately informed Sri Mohammad who was in the nearby Munsiff's Court. He straightaway proceeded to the Magistrate's Court where he found the court-peon being examined to prove the absence of the complainant when the case was called. At 11-15 A.M. and before the peon's examination was over the complainant also came up. Sri C.P. Mohammed represented that the complainant was present in court and the case may be proceeded with. The Magistrate refused to pay heed to that prayer and acquitted the accused under S.247 of the Code of Criminal Procedure, evidently on the ground that the complainant was absent at the moment the case was called.

2. Notice of this appeal was served on the accused but he has not entered appearance. The Public Prosecutor on whom notice was served also does not question the correctness of the facts as alleged by the appellant though he would maintain that the order of acquittal is proper.

3. In supporting the order of acquittal the learned Public Prosecutor relied on a decision of the Madras High Court in Nadesa Naicker v. Mari Gramani AIR. 1948 Mad. 45 where it was held that:

"In a summons case when the complainant does not appear it is imperative on the part of the Magistrate to acquit the accused unless there is a proper reason for adjourning the hearing of the

case"

Reliance was also placed on the observations made in Tonkva v. Jayanna 51 MLJ. 730 that: "The words "upon the day appointed for the appearance of the accused" in S. 247 do not mean any time before the close of the working day. The complainant should, appear when the case is called on for hearing".

As against this the appellant's counsel cited the decision of the Allahabad High Court in Ram Narain v. Moot Chand-AIR. 1960 Allahabad 296-in support of the position that the word'day' in the phrase "upon the day appointed for the appearance" occurring in S.247 cannot be interpreted as that moment in the day when the case is called and it meant the whole of the working hours of the day.

4. I do not think however that the decision cited before me can be of much help in deciding the present case which is peculiar in that the order of acquittal for the absence of the complainant was passed in the presence of the complainant.

5. S.247, Criminal Procedure Code reads thus:

"If the summons has been issued on the 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."

The section provides for the acquittal of the accused when the complainant does not appear in court on the 'day' the case i