ORDER J.N. Takru, J. - This is an appeal by the State of Uttar Pradesh against an order of acquittal passed by the SDM, Jalesar, and wrongly described by him as an order of discharge as will be shown in due course. 2. It appears that on the 8th May, 1963, a charge sheet u/s 25 of the Indian Arms Act, was received from the police against the Respondent, in the court of the SDM, Jalesar. On receipt of this charge sheet the learned Magistrate fixed the 14th May 1963 for the recording of the statement of the Respondent, and the 20th May 1963 for the recording of the evidence of the prosecution. On the 14th May 1963 the statement of the Respondent was recorded and a charge u/s 25 of the Indian Arms Act was framed against him. When the ca e was called out on the next date fixed in it, viz. the 20th May 1963, the Respondent along with his learned Counsel was present, but the two prosecution witnesses who had been served for that day, viz. Shamshul Haq and Sada Ram, SI were not present and the summons of the remaining prosecution witnesses had not been received back. Thereupon the learned Magistrate discharged the Respondent holding that there was no evidence against him. Hence this appeal. 3. As stated earlier the learned Magistrate described his order as one of discharge. It is an undisputed fact that the procedure applicable to the trial of cases u/s 25 of the Indian Arms Act, is that applicable to warrant cases under Chapter XXI of the Code of Criminal Procedure. Section 251A(2), which falls under that Chapter, is the only section which provides for the discharge of the accused in a case started on a police report. It lays down that. If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. 4. It lays down that. If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. 4. The aforesaid provision does lot apply to the present case, as the order in question does not purport to have been passed because the learned Magistrate considered the charge against the Respondent to be groundless; in the contrary he dismissed it as there was no evidence against him on ac-count of the absence of the prosecution witnesses. The only other provision, hereafter, is Sub-section (11) which provides for the acquittal of the accused. As the learned Magistrate did not pur-(sic)rt to discharge the Respondent u/s 251A(2) he must be deemed to have dared his acquittal under Sub-section (11), more so as the order shows that he discharged the Respondent on the ground that there was no evidence against him. 5. Having disposed of the preliminary point I shall now proceed to deal with the case on merits. Now, in order to appreciate the basic points falling for determination in this case, certain further facts appearing from the record, have to be stated at the outset. The record shows that at about 7.50 A.M. on the date in question, the APP moved an application before the learned Magistrate praying for a short adjournment for awaiting the arrival of the witnesses. On this application the learned Magistrate passed an order that it be kept on file, as the necessary order-- meaning the order under appeal-had been passed earlier in the morning. It would thus appear that the learned Magistrate passed the order in question very soon after taking his seat in the court. The question to be decided, therefore, is whether that order is sustainable in law. 6. Now, the procedure which applies to trial of cases u/s 25 of the Indian Arms Act has been indicated earlier. Section 251A (7) of the Code of Criminal Procedure provides that, On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. 7. 6. Now, the procedure which applies to trial of cases u/s 25 of the Indian Arms Act has been indicated earlier. Section 251A (7) of the Code of Criminal Procedure provides that, On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. 7. The word 'date' used in the aforesaid Sub-section has not fallen for judicial consideration so far, but the word 'day' used in Section 247, Code of Criminal Procedure which is an analogous provision has been held by this Court in Ram Narain v. Mool Chand (1) (1957 ALJ 790) to mean 'the close of the day.' After considering the various aspects of the matter, in the light of the earlier decision, it was held in the said case that, The failure of the complainant to appear on the day of hearing does not merely mean that he was not present at the time when the case was called out but also embraces and implies that the complainant when he appeared later in the day or who was not present earlier in the day could furnish no adequate reason for his absence at that moment. It was perhaps for this reason that the Legislature used the word 'day' for if the complainant is delayed and is not present at the moment when the case is called, he may get an opportunity to offer his explanation for his being absent at the relevant time and it is then that the Court has to decide whether a default has been committed or not." further that the punishment for default cannot be awarded unless the default is committed only at the end of t le day. 8. In my opinion the aforesaid decision which was given in regard to a summons case, applies with full force to a warrant case also, and the learned Magistrate was, therefore, in error in holding that the prosecution committed default simply because P.Ws. Shamshul Haq and Sada Ram were not present when the case was called some time before 7 50 A.M. 9. Apart from the legal angle, on grounds of propriety also the order cannot be defended. Shamshul Haq and Sada Ram were not present when the case was called some time before 7 50 A.M. 9. Apart from the legal angle, on grounds of propriety also the order cannot be defended. It is clear from what has been said above that the 20th May 1963 was the very first date fixed for the recording of the prosecution evidence and further that there was no information as to whether the summons of the remaining prosecution witnesses had been served on them by that time or not ? The learned Magistrate could not, therefore, pass the order which he did, until he had first made sure that the absence of those witnesses on the 20th May 1963 was due to reasons other than the non service of the summons on them. The learned Magistrate, therefore, exhibited undue haste in passing the order of discharge, and the least that he might have done was to have waited till the end of the day, or, at any rate, till he got definite information that the absence of the said witnesses was due to some cause other than the non service of the summons on them. Hence, whether his action is regarded as one involving propriety, or the exercise of discretion, it cannot be up held. In this view of the matter also the order of discharge-acquittal passed by the learned Magistrate cannot be sustained and has to be set aside. 10. Before parting with this case I would like to make it clear, that I should not be understood to have approved of the conduct of the APP in not having been present in court, and in making his application for adjournment before the case was called out. Had he been present and made his prayer then, I am quite sure, the learned Magistrate would not have acted in the manner in which he did. 11. For the reasons stated above, I set aside the order of discharge acquittal, and allow this app-al with the direction that the papers of this case shall be sent down to the learned Magistrate, and he shall, after readmitting it under its original number and giving notice of it to the parties, dispose of it in accordance with law.