JUDGMENT : Narasimham, C.J. - This is a petition, in revision, to set aside an order of acquittal passed u/s 247 Code of Criminal Procedure by a Third Class Magistrate of Cuttack. The Petitioner was the complainant in a case u/s 323 I.P.C. transferred to the file of that Magistrate. The prosecution evidence was closed on 25-10.1957 and the accused persons were also examined u/s 342 Code of Criminal Procedure on 10-12-1957. The case was adjourned to 11-1-1958 on which date the complainant was absent and filed a petition stating that the complainant was unavoidably detained in connection with the Sradha ceremony of his mother. The magistrate rightly adjourned the case to 25-1-1958, but again after giving notice to the parties he changed the date to 3-2-1958. On that date the complainant was absent when called and then the Magistrate acquitted the accused u/s 247 Code of Criminal Procedure As soon as the order of acquittal was passed the complainant appeared and filed a petition stating that "he was actually present in court premises but that he did not hear the sound of the peon calling out the case. The Magistrate observed that he had already passed the order of acquittal that he could do nothing more in the matter. 2. Apparently, the learned Magistrate has overlooked the proviso to Section 247 Code of Criminal Procedure inserted by the recent amendment of 1955. Formerly if in a summons case the complainant is absent on the date fixed for hearing the Magistrate was bound to acquit the accused persons but by virtue of the change in the law made by the amending Act XXVI of 1955 the following proviso Was added: 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. It does not appear, however, that in the present case the Magistrate exercised the powers conferred on him by the proviso. The further attendance of the complainant was not really necessary in the case as the prosecution case was over and the accused also had been examined u/s 342 Code of Criminal Procedure. The case was fixed to 3-2-1958 for the purpose of the defence. If the complainant did not appear, the Magistrate could have examined defence witnesses and then, after hearing the parties, passed a judgment according to law. The case was fixed to 3-2-1958 for the purpose of the defence. If the complainant did not appear, the Magistrate could have examined defence witnesses and then, after hearing the parties, passed a judgment according to law. Doubtless, if the Complainant had entered appearance through his lawyer, the help of that lawyer could have been taken for the purpose of cross examining the defence witnesses and also for argument. But even if he does not so appear there was ample material on record to enable the magistrate to dispose of the case on merits. Hence, in my opinion, the order of acquittal was not justified. 3. I would therefore set aside the order of acquittal passed by the magistrate on 3-2-1958. The case may be transferred to some other Magistrate by the Sub-Divisional Magistrate, for disposal, according to law. The complainant will not be permitted to lend further evidence but the accused persons may be allowed to adduce and then the learned magistrate may hear both parties and pronounce judgment. Appeal allowed. Final Result : Allowed