R.N. Gurtu, J. - (1.) In this case the Municipal Board, Sitapur through its Executive Officer made a complaint to a Magistrate against the applicant in respect of certain alleged interference with Municipal property, under one of the bye-laws framed by virtue of the power given to the Board by the State Govt, Under Section 298 J. (C) of the Municipalities Act. Cognizance was taken of that complaint and several dates were fixed for the disposal of the said complaint. On the date in question the Executive Officer of the Municipal Board was absent though another employee was present. Then and application was made by the accused that the complaint should be dismissed by the Magistrate as required Under Section 247 of the new Code of Criminal Procedure because of the non-appearance of the complainant. The Magistrate passed an order that he would consider that application on a subsequent date That application was considered and the Magistrate declined to dismiss the complaint because the Magistrate was of the view that a prosecution under the said bye-law was not a prosecution upon a complaint but was a prosecution upon information received and that section 247 of the Code of Criminal Procedure was not attracted. The learned Magistrate relied upon a case reported in Mst. Basanti v. Maqsud Ali Khan, 83 IC 730 ., That case lays down as follows:- "A complaint of an offence Under Section 247, UP Municipalities Act, cannot be dismissed for non-appearance of the complainant, as under that section it is the Magistrate who takes cognizance of the offence upon information received. The proceedings are not instituted upon a "complaint" within the meaning of section 4 (b) of the Code of Criminal Procedure and section 247 of the Code, has, therefore, no application to the case." Relying upon this ruling the Magistrate, as already indicated, refused to dismiss the complaint. The Magistrate, however did not think it necessary to consider whether there was or was not otherwise any good reasons for dismissing the complaint.
(2.) It is argued before me that the complaint should have been dismissed. I will examine this argument.
(3.) section 247 of the Code of Criminal Procedure runs as follows: "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.";