MODI, J.—This is a complainants appeal by special leave under sec. 417(3) of the Code of Criminal Procedure against an order of the Additional Munsiff Magistrate, Hindaun, dated 26th November, 1962 dismissing the complainants case on account of his default in appearance and acquitting the accused under sec. 247 Cr. P.C.

2. The material facts are these. The appellant Johrilal made a complaint against respondents Ramjilal and four others under secs. 323 and 352 of the Indian Penal Code on the 6th February, 1962. This case was registered on the 12th May., 1962. All the accused were served by the 3rd August, 1962. The statements of the accused were recorded on the 13th September, 1962, and the case was fixed for the complainants evidence for the 19th October, 1962. On that date, four of his witnesses were examined; and two more, namely Dr. T. N. Bhargava, the Medical Officer incharge of the dispensary at Hindaun and the Station House Officer, Hindaun, Shri Harprasad, remained to be examined. These were ordered to be summoned through the court on that date for the 26th November, 1962. The complainant put in the requisite process-fees on the 20th October, 1962. On the 26th November, 1962, the case was called for hearing, but the complainant was found absent although his counsel Shri Omprakash was present. Thereupon the Magistrate dismissed the case and acquitted the accused under sec. 247 Cr. P.C. against which order the present appeal has been filed in this Court.

3. I have heard learned counsel for the complainant and the learned counsel for the respondents and have come to the conclusion that this appeal must be allowed.

4. The principal reason which has persuaded me to come to the conclusion to which I have is that on the 28h November, 1962, the case could not proceed even if the complainant should have been present, and, therefore, his absence was not material in the sense that it should have led the learned Magistrate to dismiss his case. The reason why the case could not proceed was that although, in compliance with the order of the court, the complainant had put in the necessary process-fees on the 20th October, 1962, in connection with the summoning of the two official witnesses, no summonses had at all been issued against them until the 26th Nov., 1962, for some reason which is not apparent on the record, and which fact does not seem to have been noticed by the trial court. I should like to point out that sec. 247 Cr. P.C. is not intended to serve as a short-cut for trial courts to dismiss cases by snap judgments. The power to dismiss the case is undoubtedly there when the complainant in a case instituted on a complaint is absent in a summons case, but that power must be judicially exercised ; and, it must be seen and considered having regard to the circumstances of a given case whether the presence of the complainant was essential on that date to proceed with the case or it could be dispensed with. It may also be pointed out in this connection that, so far as the present case is concerned, the complainant was throughout diligent in prosecuting his case right from the date it was filed on the 6th February, 1962, and there were in all twelve hearings between that date and the 26th November, 1962, and he was present at all of them except the last-mentioned date.

5. It may further be pointed out in this connection that the object of the Legislature in framing sec. 247 Cr. P.C. is clearly discernible from the manner in which the scope of the proviso to this section has been extended by the Criminal Procedure Code Amendment Act No. XXVI of 1955. The proviso as it stood earlier was in these terms:—

"Provided that where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance and proceed with the case."

This has since been amended as follows:—

"Provided that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary the Magis

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