JUDGMENT C.B. Capoor, J. - This appeal has been preferred by one Bhagwat Sahai, Executive Officer, Municipal Board, Sultanpur and is directed against an appellate order of Sri Indra Singh, the learned Sessions Judge of Sultanpur whereby the appeal preferred by the respondent against the order of a Magistrate I class convicting the respondent of the offences under Section 185 read with Section 307 and 185 of the U.P. Municipalities Act and sentencing her to pay a fine of Rs. 100/- on each of the aforesaid accounts was allowed and the conviction of and the sentence awarded to her were set aside. 2. The learned Sessions Judge allowed the appeal on the ground that in view of the provisions of Section 247 of Cr.P.C. it was obligatory on the learned Magistrate to have acquitted the respondent as the complainant has not appeared had not appeared either on 1-11-1961 or on any of the dates fixed for hearing in the case prior to that. 3. The only question that arises for decision in this appeal is as to whether the order of the learned appellate court is sustainable or not. In order to appreciate the question of law, the following facts had better be stated. It appears that on 8-8-1961 the statement of the accused was recorded; two of the prosecution witnesses were examined on 14-9-1961 and the remaining two on 25-9-1961. On 12-9-1961 the statement of the respondent accused was recorded under Section 342 of Cr.P.C. On 1-11-1961 two more witnesses were examined on behalf of the defence and an application was filed praying that the accused be acquitted as the complaint was not present on that date or any of the earlier dates. The counsel for the complainant was present in the court and the learned Magistrate made the following order on that application:- "In this case, the presence of the Executive Officer is not necessary. File." The learned Magistrate thereafter fixed 3-11-1961 for arguments and on 29-11-1961 convicted the respondent and sentenced her as indicated in the foregoing portion of this judgment. 4. It will have been noticed that the complainant had closed his case and had adduced all the evidence that he proposed to adduce prior to 1-11-1961 and the personal presence of the complainant was not at all necessary for the further progress of the case. 4. It will have been noticed that the complainant had closed his case and had adduced all the evidence that he proposed to adduce prior to 1-11-1961 and the personal presence of the complainant was not at all necessary for the further progress of the case. The learned Magistrate, in our opinion, exercised a sound discretion in not dismissing the complaint on 1-11-1961. 5. It has also been contended on behalf of the respondent that as even on the earlier dates the complainant was not personally present the complaint should have been dismissed and as to that contention suffice it to say that the respondent had submitted to the procedure adopted by the learned Magistrate and no objection was made on the score of the absence or the complainant. 6. The learned appellate court had relied upon a Division Bench case of this Court reported as State v. Reva Chand, A.I.R. 1961 Alld. 352. It was held in that case that the provisions of Section 247 of Cr.P.C. were mandatory and that if on the date of hearing the complainant is absent while the accused is present, the court is bound to acquit the accused unless it thinks proper to adjourn or the personal attendance of the complainant is dispensed with. 7. What happened in the aforesaid case was that the first date fixed for the statement of the accused was 6-6-1958. The next date fixed was 11-6-1958. No witnesses were present and the State Counsel wanted to adjournment. 19-6-1958 was again fixed when also the State Counsel wanted adjournment. On the next date i.e. 2-7-1958 a date for evidence was fixed but no evidence was recorded on this date either. Thereafter the case could not be taken up either on 13-8-1958 or 27-8-1958 and it had to be adjourned because the witnesses for the prosecution had not come. In the aforesaid case, the complainant was guilty of laches and was not circumspect in prosecuting the case. That apart, the aforesaid case is also distinguishable from the instant case inasmuch as therein, the learned Magistrate had, on 1-11-1961 when an application for the dismissal of the complaint was presented, made an order that the presence of the Executive Officer, the complainant was not necessary. That order, by implication, exonerated the complainant from personal attendance in court. That apart, the aforesaid case is also distinguishable from the instant case inasmuch as therein, the learned Magistrate had, on 1-11-1961 when an application for the dismissal of the complaint was presented, made an order that the presence of the Executive Officer, the complainant was not necessary. That order, by implication, exonerated the complainant from personal attendance in court. The learned Magistrate had exercised his discretion and the learned appellate court, in our opinion, was not right in setting at bought the discretion exercised by the learned Magistrate in the matter, particularly when it did not appear to have been exercised capriciously or arbitrarily. 8. Section 247 of Cr.P.C. was considered by our brother, Ram Asrey Misra, J. in the case of Prem Nath Khanna v. Chief Inspector, Factories, Kanpur, 1963 A.L.J.R. 989, wherein the following observations were made:- "Where a complaint has been filed by a particular public servant; technically the signatory to the complaint will be that public servant, as required by law, but his role may be only of a formal nature and even though he signs the complaint he may known nothing personally about the facts of the case. His presence, therefore, on the hearing of the case is wholly unnecessary and would lead to waste of public time and money. The dismissal of the complaint and acquittal of the accused merely on the ground of non-appearance of the complainant would defeat the very ends of justice. In order to avoid this unjust result the later part of section 247, Cr.P.C. provides that the Magistrate instead of acquitting the accused may adjourn the case to another date for reasons which he thinks proper. The proviso to the section vests in the Magistrate a still wider discretion that in proper case where he thinks the presence of the complainant to be unnecessary, he may dispense with his attendance and proceed with the case." We respectfully agree with the aforesaid observations and would like to add that it was perhaps not the intention of the Legislature in enacting the provisions of Section 247 of Cr.P.C. that an order of acquittal should be made on the ground of absence of the complainant irrespective of the fact whether his presence is or is not necessary for the further progress of the case. 9. The scope of Section 247 of Cr. 9. The scope of Section 247 of Cr. P.C. as it now stands and as it stood prior to its amendment in the year 1955 has been considered by the other High Court also and reference may usefully be made to the following cases:- 1. State of Madhya Pradesh v. Adbul Kadir Khan, A.I.R. 1963 (M.P.) 125. 2. Excise Department v. Chota Hanmanthu, A.I.R. 1951 (Hyderabad) 88. 3. Kutch Government v. Ishwarlal Thakoradas, A.I.R. 1949 (Kutch) 22. 4. Joseph v. Anchalo Fernandez, A.I.R. 1951 (T.C.) 25. 5. C.R. Alwares v. Habool, A.I.R. 1959 (Rajasthan) 100. The first of the aforesaid cases, namely, the Madhya Pradesh case was under the amended Section 247 of Cr.P.C. and the following observations were made therein:- "Then, apart from the legal position as aforesaid, the order passed by the Sub-Divisional Magistrate is manifestly improper. The proviso to Section 247 of the Code, as has now been substituted by the amendment in 1955, gives a wider discretion to the trying Magistrate in the event of a complainant being absent on the date of the hearing. The report, in the instant case, even assuming it to be a complainant, was by a public servant acting or purporting to act in the discharge of his official duties. His examination, which is otherwise very essential, is dispensed with under proviso (aa) to Section 200 of the Code of Criminal Procedure and his presence in Court unless expressly ordered is also not necessary on every hearing. Even if the complainant is a private party the Magistrate has been given discretion to proceed with the case if his presence is not necessary. It means that the Magistrate before deciding to dismiss the complaint and acquit the accused in exercise of powers under Section 247, Criminal Procedure Code has first to consider if he is unable to proceed with the case without the presence of the complainant and if he is not, then he has to consider if the absence of the complainant is without any lawful excuse or not. The Magistrate has, therefore, to exercise the powers of dismissal of the complaint under Section 247, Cr.P.C. with judicial discretion. The Magistrate has, therefore, to exercise the powers of dismissal of the complaint under Section 247, Cr.P.C. with judicial discretion. The Hyderabad case was under the Hyderabad Criminal Procedure Code but the provisions of Section 219 of the Code were substantially the same as those of Section 247 of Cr.P.C. In that case on the date fixed for the defence evidence, no evidence was adduced, nor had any step been taken by the accused to summon the defence witnesses, nor had he filed any list of defence witnesses. The complaint was absent on that date and an order of acquittal was recorded by the learned Magistrate. On appeal, it was held that the attendance have been dispensed with under the proviso to Section 247 of Cr.P.C. and the case should not have been dismissed for default. The other cases were under Section 247 of Cr.P.C. as it stood prior to amendment in the year 1898. In the Kutch case, a complaint was filed by a public servant who had been transferred by the time who had been transferred by the time that the case was taken up for the recording of evidence. He was absent on the date fixed but the other prosecution witnesses were present. The Magistrate dismissed the complaint. It was held that the case was not such as could not have been proceeded within the absence of the complainant and the Magistrate should have proceeded to examine the witnesses for the complainant who were present and he did not exercise a sound discretion in dismissing the complaint. In the Travancore-Cochin case, the evidence of the complainant who was a public servant had already been recorded. He was absent on a subsequent date when the complaint was dismissed. It was held by a Division Bench that the Magistrate did not exercise judicial discretion in dismissing the complaint, specially when the statement of the complainant had been recorded and an Advocate was there to represent the complainant. In the Rajasthan case, the evidence for the complainant had been recorded and the defence evidence had begun but had not concluded when the case was adjourned. On the adjourned date the complainant was absent though his counsel was present. The Magistrate trying the case acquitted the accused on account of the absence of the complainant. In the Rajasthan case, the evidence for the complainant had been recorded and the defence evidence had begun but had not concluded when the case was adjourned. On the adjourned date the complainant was absent though his counsel was present. The Magistrate trying the case acquitted the accused on account of the absence of the complainant. It was held by a Division Bench of the Rajasthan High Court that the Magistrate did not exercise a sound discretion in dismissing the complaint. In the course of the order it was observed that before acquitting the accused on the default of the complainant it was the duty of the Magistrate to see whether the personal attendance of the complainant was necessary on that date or not. 10. The principles underlying the aforesaid decisions is that in exercising his discretion as to whether the personal attendance of the complainant should be dispensed with or not the Magistrate should act judiciously and not arbitrarily. For the foregoing reasons we are unable to uphold the order of the learned Sessions Judge. 11. We, accordingly, allow the appeal, set aside the order of the learned Sessions Judge and remand the appeal to him for disposal in accordance with law in the light of the observations made in this judgment.