The Magistrate has the discretion to adjourn the hearing of a case if the complainant does not appear, and should consider whether it would be proper to do so before dismissing the complaint.

A.N.GROVER, J.

1. This is an appeal by special leave against an order made by Shri Des Raj Mahajan, Magistrate, 1st Class, Bhatinda, dated 7th September 1963, acquitting the respondent on the ground that the complainant was absent. It was also stated in the order that the respondent had not been served as the copy of the complaint had not been filed by the complainant.

2. The appellant filed a complaint, dated 16th August 1963, against the respondent who was posted as Assistant Station-master, Railway Station Raman, accusing him of offences under Ss. 323/504, I.P.C. After recording the statement of the complainant and another person Bant Ram the learned Magistrate directed the issue of summons to the, respondent on 29th August 1963, to answer the charge under S. 323, I.P.C. His order was in these terms :-

"From the evidence and the document on the record I am of the opinion that there are sufficient grounds to proceed against the accused under S. 323, I.P.C. He be summoned on payment of process-fee for 7th September 1963." On 7th September 1963, the order under appeal was made. It runs as follows :-

"Present :- None for the complainant. Accused not served, as the copy of the complaint was not filed. Hence the accused is deemed to have been acquitted."

The appellant filed an application on that very day saying in the application that he had gone out for a short while to drink water although he was present in Court and that his complaint should not have been disposed of in the manner in which it had been done. It was stated by him in the application that the time at which he was making it was 11 Oclock in the morning. This application was disposed of on 9th September 1963, by the learned Magistrate who dismissed it by saying that since the accused had been acquitted no application could be entertained for restoration of the complaint. Section 247, Cr. P.C., provides -

"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".

Certain rules and orders have been framed by this Court which are embodied in Vol. III, Chap. 1-F, headed as Dismissal of cases in default. Rule 2 says that before a case is dismissed by reason of the absence of complainant, the Magistrate should carefully consider -

(a) whether such an order is legal; and

(b) whether it is justified by the circumstances.

In view of the proviso added to S. 247 of the Code by Act 26 of 1955, even in summons cases the Magistrate can proceed with the case on complainants failure to attend when he considers that complainants personal attendance is not necessary. Reasons should always be recorded where a case is dismissed in default.

Rule 3 ibid is in the following terms :-

"3. In applications for revision of orders dismissing complaints or cases instituted on complaint, by reason of the absence of the complainant, it is frequently urged - (a) that the complainant was not called;

(b) that the case was dismissed very early in the day; or

(c) that the Magistrates being on tour, the complainant had no, or insufficient, notice of the place of sitting.

(ii) The Magistrates records often furnish no definite information on any of these points. The following instructions are accordingly issued for guidance to subordinate Courts - (a) Magistrate should not dismiss complaints or cases instituted on complaint without giving complainants full opportunity for appearance. Ordinarily, if a complainant is absent when his case is first called on, his case should be ca