- (1.) THIS is a reference by the District Magistrate of. Churu, and has arisen in the following circumstances:
(2.) A complaint under sec. 447 I. P. C. was brought by Kana against Surja and others on the 12th August, 1950. The case dragged on in the court of the Tehsildar Magistrate of Sujangarh up to the 2nd June, 1951. That date was fixed for examination of a witness who had been summoned. On that date, Kana complainant absented himself. His counsel, however, was present, and made an application for adjournment of the hearing on the ground that for some reason, which was unknown to the counsel. Kana had not been able to come. The Magistrate, however, acted under sec. 247 of the Code of Criminal Procedure, and acquitted the accused. Thereupon, Kana went in revision to the District Magistrate of Churu, and this reference has been made to us for setting aside the order of acquittal. The matter came before a learned single Judge of this Court, and he referred the case to a Division Bench, as the point seemed to him of importance in view of the presence of the counsel on the date the accused were acquitted. The case raises a question of interpretation of sec. 247 of the Code of Criminal Procedure. The matter came before one of us, and we think it sufficient to refer to the decision in Chander Das vs. Malla (1) (A. I. R. 1952 Raj. 136=1952 R. L. W. 78.) on the question of interpretation of sec. 247. We approve the law laid down in that case. The only difference between that case and the facts of the present case is that in that case there was not even a lawyer present, while in thus case, the lawyer had appeared and had prayed for adjournment on behalf of his client. In law, however, the presence of the lawyer will not make any difference, and the Magistrate would still be justified in. acquitting the accused if the complainant is absent. Reference in this connection may be made to Nagarambilli Tonkya vs. Matta Jagannatha (2) (A I. R. 1926 Mad. 1009.) and Pirag Lal vs. Rustam Singh (3) (AIR. 1936 All. 658. ). Sec. 247 clearly shows that the presence of the complainant is absolutely essential for a summons case, which is based on a complaint, to proceed. If the complainant is absent, the Magistrate has one of two courses open to him. The normal course is to acquit the accused. But, if for some reason, the Magistrate thinks proper to adjourn the hearing of the case, he may do so. The presence or absence of the lawyer may be taken into account by the Magistrate when he is deciding whether to adjourn the case or not. But, if the Magistrate decides, even after hearing the lawyer, to acquit, he has the power to do so under sec. 247. It has been urged by learned counsel appearing on behalf of Kana that, in this case, we should interfere with the order of the Magistrate, as there was good reason for the Magistrate to adjourn the hearing. It is pointed out that the date was fixed for the evidence of a certain witness who was not present and therefore, even if the complainant had been present, the case would, in any case have to be adjourned. That, however, in our opinion, does not dispose of the matter. The mere fact that the case would, in any case, have to be adjourned even if the complainant was present, does not entitle the complainant to an adjournment if he was absent. The exercise of the discretion in favour of the complainant would depend upon whether his lawyer could put forth a good reason for the absence of the complainant and the court came to the conclusion that in the ends of justice it was necessary to adjourn the case. But in this case, we find that the lawyer himself did not know why the complainant had not come and therefore it was impossible for him to assign any good reason for the absence of the complainant. All that he could say, and did say, in the application for adjournment, was that, for some reason not known to him, the complainant had been unable to come. In the circumstances of the present case, there is no reason to interfere with the order of acquittal in a case which is after all not of a serious nature. We, therefore, reject the reference. The record will be returned to the court concerned. . ;