Sharma, J. - (1.) THIS is a reference by the learned Additional Sessions Judge, Dholpur, recommending that the order of the learned Second Class Magistrate, Rajakhera, dated 23rd October, 1954, acquitting the accused Bachulal and others, be set aside.
(2.) PARTIES have not appeared. I have gone through the record of the case and also the order of the learned magistrate as well as the judgment of the learned Additional Sessions Judge. The case was, no doubt, under sec. 447 I. P. C. and was a summons case. Under sec. 247 of the Criminal Procedure Code if the summons has been issued on the 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 acquit the accused unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. In the present case, however, the date on which the case was dismissed and the accused were acquitted was not for the first appearance of the accused or for any hearing in the case. The hearing had already been concluded on the 16th of October, 1954, when the arguments had been heard and the case was adjourned to 23rd of October, 1954, only for the pronouncing of the judgment. The order did not call upon the complainant to be present on that day ; nor was the presence of the complainant necessary. It is only the presence of the accused which was necessary on the date of the pronouncement of the judgment. The learned Magistrate was, therefore, not justified in dismissing the case and acquiring the accused. I am fortified in this view of mine by a ruling of the Lahore High Court in the case of Mohammad Hayat Mohammad Yar vs. Daulat Khan Saleh (1) and the ruling of the Nagpur Judicial Commissioner's Court in the case of Emperor vs. Jangusingh (2 ). In both these cases it was held that where the complainant was present throughout the whole case but was absent on the day of delivery of judgment, the acquittal of the accused under sec. 247 was improper. There is no doubt that no appeal was filed by the Government against the above order of acquittal. But as held by Allahabad High Court in the Full Bench case of Zamir Qasim vs. Emperor (3) even in the absence of an appeal by a Provincial Government it is open to the High Court under sec. 439 Cr. P. C. to set aside an acquittal and order a retrial. There are very special circumstances in this case as the learned Magistrate has committed a very serious error in law and I shall, there-fore, be justified in setting aside the order of acquittal. The judgment of the learned Sessions Judge shows that some rulings were cited before him in order to show that no revision lies against an order of acquittal. Those rulings, namely, 13 Indian Rulings (Nagpur) 111 and 9 Indian Rulings (Allahabad) 203 are not available here. But it appears from the judgment of the Additional Sessions Judge. that in those cases hearing had not been concluded and the case was adjourned for further hearing on the date when the complainant did not appear. Sec. 247 was, therefore applicable to the facts of those cases. The third ruling referred to in the judgment of the learned Additional Sessions Judge, which was cited on behalf of the accused is in the case of Bindra vs. Mst. Bhagwanta (4 ). I have gone through that ruling. The facts of that case were altogether different. In that case a summons case against the accused was dismissed under sec. 247 of the Criminal Procedure Code but no order acquitting the accused was specifically made. No appeal or revision was filed against that order. A fresh complaint was, however, brought but it was held that the order on the first complaint was a bar to the second complaint, A revision was taken by the complainant and the learned District Magistrate set aside the order of the Magistrate on the second complaint and sent the case back to the trial court for further inquiry. It was rightly held that the District Magistrate had no such power as it was not a revision under sec. 436 Cr. P. C. which applied only to cases of discharge. Agreeing with the learned Additional Sessions Judge I accept the reference, set aside the order of dismissal of the complaint and acquittal of the accused by the learned Second Class Magistrate, dated the 23rd October, 1954, and send the case back to the trial court for disposal in accordance with law. If the learned Magistrate who tried the case has been transferred away, the District Magistrate shall make over the case for trial to another Magistrate of competent jurisdiction. .;