BISHAMBHAR DAYAL, J.

( 1 ) THIS is an appeal against 311 order of acquittal passed by the Additional District Magistrate of bijnor dated 29-9-1958. The facts which have led to this order may be shortly stated as follows. Appellant Naresh Prasad filed a complaint against the respondent Mahabir Prasad under Sections 842 and 166 I. P. C. which was pending before a Magistrate. The complainant made a further application claiming that the facts disclosed an offence under Section 320 I. P. C, and that the procedure for an enquiry should be followed in the case, as it was a case triable by the Court of session. This application was made on 23-9-1958. It was rejected by the learned Magistrate. A revision against this order was filed before the Sessions Judge. The Sessions Judge while admitting the revision passed the following order, "stay pending revision" on 26-9-1958.

( 2 ) AFTER this order had been passed by the leaped Sessions Judge, the case came up for hearing before the Magistrate on 29-9-1958. When the case was called up, learned counsel appearing for the complainant appeared before the court; in the circumstances it must be believed that he informed the learned Magistrate of the fact that further proceedings in the case had been stayed by the Session Judge. The Magistrate, however, passed the order which is now under appeal. In this order he has stated that the complainant was not present. His counsel, however, came but since the complainant was not present, the complaint was dismissed and the accused was acquitted. It seems that the learned counsel finding the Magistrate not accepting his oral statement, made an application in writing and presented it to the court the same day. Upon this application, the Magistrate passed the following order, "received after dismissal of the complaint. File. " The order passed by the Sessions Judge also reached the Court the same day and it has been noted upon a copy of this order, which is on file, that it was received at 4. 25 P. M.

( 3 ) UPON these facts, the contention of the learned counsel for the appellant is that further proceedings in the case having been stayed by the Sessions Judge, the complainant was not bound to appear before the Magistrate, and the Magistrate having been informed by his counsel that further proceedings could be stayed, the Magistrate was wrong in dismissing the complaint and acquitting the accused.

( 4 ) LEARNED counsel for the respondent has1 contended two points. The first is that the learned sessions Judge had himself no power to pass an order of stay as he has done. The order was therefore illegal and had no effect upon the case. In the second place, his contention is that it was the duty of the complainant to appear before the court on that date and to inform the court by means of an affidavit that the proceedings had been stayed; that not having been done, the magistrate was justified in dismissing the complaint.

( 5 ) HAVING heard learned counsel for both the parties, the question really for consideration is whether the Magistrate had acted rightly in proceeding under Section 247 Cr. P. C. Upon a reading of Section 247 Cr. P. C. aforesaid, it is clear that the date on which a dismissal order can be passed, must be a date fixed for the appearance of the accused or any subsequent date to which the "hearing" may be adjourned. This would necessarily mean that it must be a date on which the case was to be heard. It cannot be held with any reason that a date on which nothing can be done in the case, is also a date to which the "hearing has been adjourned". If in a particular case, a date is fixed only for fixing another date and the complainant does not appear but his counsel appears, then on that date the complaint cannot be dismissed. The power given under the section must be exercised reasonably and only in a case where the complainant has failed to appear without any just cause. Another point to be noted in this section is that the complainant should not

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