The duty of the Magistrate to consider the necessity of the complainant's presence and relevant circumstances before acquitting the accused.

D.S. Dave, J.-This is an appeal by the complainant under Section 417 (3) of the Criminal Procedure Code against the order of the Second Class Magistrate, Patan dated the 19th of April, 1957 acquitting the accused Habool and Shamshuddin of an offence under Section 447 Indian Penal Code.

2. The facts giving rise to this appeal are that the appellant filed a complaint under Section 447 Indian Penal Code in the Court of the First Class Magistrate, Bundi against the accused Habool and Shamshuddin on the 29th of December, 1958. The Magistrate sent the complaint for enquiry and report to the police. The police reported that an offence under Section 447 Indian Penal Code was made out against the accused. Thereafter the case was registered and it was transferred to the Magistrate at Patan. The Magistrate at Patan tried the case and before April, 1957, the complainant finished all his evidence and even the accused produced three witnesses in their defence. On the 19th of April, 1957, when the case was taken up for hearing, the complainant’s Counsel was present in the Court and the accused were also present with their Counsel. The complainant himself was, however, absent that day and therefore, the trial Court proceeded to acquit the accused under Section 247 Criminal Procedure Code.

3. It has been urged by the appellant that 19th of April, 1957 was declared a holiday for Christians by the Government of Rajasthan since it was Good Friday and that was why he did not make his appearance in the Court. It is contended that the said order perhaps did not reach the Court and the Counsel for both the parties were also unaware of this position. It is prayed that the complainant was not at fault in not putting his appearance on that day and therefore, the order of acquittal should be set aside and the case be sent back to the Magistrate for trial according to law.

4. Theaccused have not cared to appear in this Court in spite of notice having been served upon them. We have gone through the record and find that the complainant is true in saying that he had completed all his evidence and that even the accused had examined the witnesses in defence. It also appears from the order-sheet of the 19th of April, 1957 that the complainant’s Counsel was present in the Court. Under the circumstances it was not proper for the trial Court to dismiss the complaint and acquit the accused. It is true that Section 247 Criminal Procedure Code lays down that “if the sunm-ions has been issued on a 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.” But there is also a proviso to this section which lays down that “if the Magistrate is of opinion that the personal attendance of the complainant is not necessary, Magistrate may dispense with his attendance, and proceed with the case,” It may be pointed out that this proviso was amended by the Criminal Procedure Amendment Act of 1955. The old proviso was only in favour of those complainants who were public servants. But after the amendment it has been made applicable to all complainants irrespective of the Act whether they are public servants or not. Before dismissing the case, therefore, it became the duty of the Magistrate to see whether the personal attendance of the complainant is necessary on the date he passed the order of acquittal. In a case like the present one where the complainant has finished all his evidence, where the evidence of the accused is proceeding and where the complainant’s Counsel is also present, it is not a sound judicial discretion of the Court to dismiss the case of the complainant and acquit the accused without taking it into consideration whether the presence of the complainant is