JUDGMENT : Barman, J. - This is an appeal against an order of acquittal passed by the learned Magistrate 1st Class, Bhadrak, in Case No. C. 89-I/T. 171/T. 198/T. 213 of 1958 whereby the learned Magistrate dismissed the complaint case u/s 247, Code of Criminal Procedure 2. The relevant facts shortly stated are these: On February 22nd, 1958 the Appellant-complainant filed a complaint before the Sub-Divisional Magistrate, Bhadrak, against the accused Respondents on charges under Sections 323 and 307 Indian Penal Code. On March 17th, 1958 the said complaint case was transferred to a Magistrate 3rd class. On December 6, 1958 the complaint was examined before the learned Magistrate as also three witnesses for the prosecution. On January 28, 1959 the complainant-Appellant filed another complaint petition before the learned Sub-Divisional Magistrate pray-Jug for alteration of the charge against the accused-Respondents to one u/s 325 Indian Penal Code instead of u/s 323 Indian Penal Code. On February 6, 1959 the complaint case was transferred to another Magistrate for trial. The order-sheet shows that on May 23, 1959, the date on which it was directed to be put up the accused persons were present but the complainant and his witness were absent. The learned. Magistrate dismissed the case u/s 247 Code of Criminal Procedure as aforesaid. Hence this appeal. 3. Mr. A.K. Tripathy, learned Counsel appearing for the complainant-Appellant, contended that the order of acquittal could not be sustained in view of the proviso to Section 247 Code of Criminal Procedure which provides 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. The learned Counsel contended that inasmuch as the complainant had already examined himself as also three witnesses for the prosecution, the Magistrate should have proceeded with the case and given his decision according to law instead of acquitting the accused-Respondents u/s 247 Code of Criminal Procedure . In support of his contention the learned Counsel relied on a decision of this Court in Narendranath Mohanty v. Anirudhanath Mohanty where this Court dealing with the scope of Section 247 Code of Criminal Procedure (as amended) held that if a complainant does not appear on the date fixed, the Magistrate can go on with the case in the absence of the complainant. It is quite clear that on the facts and circumstances of that case the learned Magistrate failed to exercise the powers conferred on him by the proviso to Section 247 Code of Criminal Procedure . In the present case also, in view of the fact that the complainant had already examined himself, the further attendance of the complainant was not really necessary in the case, as the prosecution case could have been treated as over. Besides, three witnesses for the prosecution had also been examined. In the circumstance that the complainant did not appear, the learned. Magistrate could have examined the defence witnesses and then after hearing the parties passed a judgment according to law. There was ample material on record to enable the Magistrate to dispose of the case on merits. Before acquitting the accused, on the default of the complainant it is the duty of the Magistrate to see whether the personal attendance of the complainant is necessary on the date. When the complainant had presumably finished all his evidence, it is not a wound judicial discretion of the Court to dismiss the .case of the complainant and acquit be accused without taking into consideration whether the presence of the complainant is necessary. C.R. Alwares v. Habool and Anr. Therefore in my opinion the order of acquittal passed by the learned Magistrate was not justified. 4. A preliminary point was taken by Mr. K. De, learned Counsel appearing for the accused Respondents, that this appeal was barred by limitation. The dates show that the order under appeal was made on May 23, 1959 and the appeal was filed just two months thereafter on July 23, 1959. It appears that the Appellant made an application for grant of certified copy of the order on July 22, 1959 which he duly received and thereafter filed the appeal. The Appellant is therefore entitled to the exclusion of the time for obtaining the certified copy of the order. The appeal was thus filed within time. 5. I, therefore, set aside the order of acquittal passed by the learned Magistrate on May 23, 1959. The case may be transferred to some other Magistrate by the Sub-Divisional Magistrate, for disposal, according to law. The appeal was thus filed within time. 5. I, therefore, set aside the order of acquittal passed by the learned Magistrate on May 23, 1959. The case may be transferred to some other Magistrate by the Sub-Divisional Magistrate, for disposal, according to law. I must further make it clear that the Appellant-complainant will not be permitted to lead further evidence but the accused persons may be allowed to adduce and then the learned Magistrate may hear both parties and pronounce judgment. This appeal is accordingly allowed. Final Result : Allowed