The instructions issued by the High Court regarding the dismissal of complaints for default are directory in nature and not mandatory.

T. U. Mehta, C. J. (Oral).—The appellant Jai Parkash Sharma had filed a private complaint against the respondents Nos. J, 2 and 3 for the alleged offences punishable under sections 323 and 5t6 of the Indian Penal Code, in the court of the Magistrate First Class, Bilaspur. The incident which is referred to in the complaint is said to have taken place about six years ago, i.e. on 6th October, 1973 at 10.30 A. M. According to the complainant, respondents 1, 2 and 3 had caught him and had given "blows on his body with an electric-type hunter".

2. After the process was issued, the matter came up before the learned Magistrate on 18-12-1973 when the complainant Jai Parkash was present in person and the respondents Nos. 1 and 3, Jagdamba Prasad and Mata Prasad, were also present in person. However, the respondent No. 2 Shakti Prasad was net present and the summons which were issued to him was also not received back, served or unserved. The court, therefore, ordered that fresh address of respondent Shakti Prasad be filed and he may be summoned on the next date which was fixed for 7th January, 1974.

3. The matter was taken up for hearing on 7-1-1974 when the court found that the complainant was not present, nor his Advocate was present. The court made the following proceedings on 7-1-1974:— "Present:— Jagdamba Prasad and Mata Prasad accused with Shri D. S. Kutal, Advocate. The case has been called thrice. It is 11-00 A. M. now. The complainant is not present, nor his counsel. The case is, therefore, dismissed for default of the complainant, under section 247, Cr. P. C. and the accused are acquitted.*

4. It is an admitted position that after this order or acquittal was passed by the court under section 247 the old Code of Criminal Procedure, no further proceedings took place in that court, and there is nothing to show that either the complainant or his Advocate appeared before the court during the course of hearing on that day.

5. The complainant, however, preferred the present appeal against the above referred order of acquittal, en 3rd March, 1974. Along with the appeal he filed a certificate showing that from 4-1-1974 to 11-1-1974 he was admitted to Civil Hospital Roper. In the appeal memo the appellant has further averred that since on 7th January, 1974 he was not able to attend the court on account of his sickness, he had sent one of his relatives Shri Bhagwati Prasad to file an application in the court as per copy found at Annexure E in this appeal. It is said that at that time Shri Bhagwati Prasad was also in possession of a medical certificate showing that the appellant was not capable of remaining present in court. It is further averred in the appeal memo that when Shri Bhagwati Prasad was to file his application for adjournment, he came to know that the case was already dismissed by the Magistrate for default at 11-00 A. M. and therefore Bhagwati Prasad did not file that application.

6. Before proceeding further on the points raised in this appeal, we would like to note that even in this appeal the appellant has not filed any affidavit of Bhagwati Prasad showing that he was about to file an application for adjournment but could not do so as he came to know that the case was dismissed by the court. The appellant has also not shown in this appeal any reason why he could not remain present in court through his Advocate on the day of the hearing. The documents which he has filed in this appeal are admittedly not in the record of the trial court.

7. The learned Advocate of the appellant, however, contended that even apart from the question whether the appellant was sick and made an attempt to get an adjournment of the case through his relative Bhagwati Prasad, the order in question is patently bad and illegal as it is in violation of the specific instructions issued in the III Volume of the Rules and orders of Punjab High Court, Chapter 1-F, paragraphs 2 and 3. It was contended that according to the various decisions given by the