I. D. Dua C. J. and T. V. R Tatachari J. ( 1 ) THIS is an acquittal appeal in a case started on a private complaint by Modh. Yamin complainant appellant. The impugned order was passed by Shri A. C. Kher, Magistrate 1st Class, Delhi, on 10th February 1966 and reads as under : - "the complainant Mohd. Yamin is absent today. It is 11. 15 A. M. and he has been called thrive but ha is absent. The accase I are, therefore, acquitted in accordance with provisions of section 247 Cr. P. C. as the case standing trial before this Court is of section 323, 1. P. C. , which is a summons case. The file may be consigned to record room. "it is obvious that there is no mention of the fact whether or not the accused persons were present on the date of hearing when they were acquitted on account of the absence of the complainant. ( 2 ) THE complaint under sections 323, 324, 325, 323 and 452, Indian Penal Code, was filed on 30th January. 1965, against two accused persons Zafar Mohammad and Mohd. Akal, in which it was alleged that accused No. 1 had beaten the complainant mercilessly after using fifthy language because of a customer having come to the complainant s shop after visiting the shop of the said accused the matter was reported to the Police Station, Jama Masjid, but the police declined to take any action. A copy of the report was attached with the complaint. Since that incident, the two accused persons, who are running a common shop of motor parts at a few paces from that of the comkplainant in Kabari Bazar, Jama Masjid, have been feeling inimical towards the complainant. On 16th January, 1935 at It AM, when the complainant was working in his shop, the two accused persons arrived there and all of a sudden gave a blow with an iron rod on his head, as a result of which the complainant became unconscious. They also beat the complainant with the same iron rod on his leg and at his back. Some persons, including the neighbouring shop-keepers, arrived at the spot and saved the complainant from the clutches of the accased. This matter was reported to the Police Station, Jama Masjid by one Mohammad Babu, an eyewitness to the occurrence. They also beat the complainant with the same iron rod on his leg and at his back. Some persons, including the neighbouring shop-keepers, arrived at the spot and saved the complainant from the clutches of the accased. This matter was reported to the Police Station, Jama Masjid by one Mohammad Babu, an eyewitness to the occurrence. The complainant was taken to the Police Hospital and thereafter was sent to Irwin Hospital, where he remained from 16th January, 1965 to 27th January, 1965. This complaint was accompanied by a list of five witnesses. It appears that the matter was referred for enquiry under section 202 Criminal Procedure Code, and Shri V. K Bhalla, Sub Divisional Magistrate on 18th September, 1965, alter going through the evidence of four witnesses produced by the 143 complainant, came to the conclusion that the injuries suffered by the complainant were simple, caused, by some blunt weapon, with the result that only a case under section 323, Indian Penal Code, was made out. With this opinion, the file was submitted to the learned Additional District Magistrate (Central) and the complainant was also directed to appear before the said A. D. M. on 20th September, 1965. It is worth pointing out that in the course of enquiry under section 202, Criminal Procedure Code, the first two witnessess were examined on 20th March, 1965, the third witness was examined on 16th April, 1965 and the fourth on 9th August, 1985. From the oder-sheet, I find that on 19th August, 1965, the Magistrate had ordered the complainant to appear before the Additional District Magistrate on 13th September, 1965, but the file was directed to be placed before the Court for a suitable order on 6th September, 1965. This order is obviously difficult to understand, On 13th September, 1965, the complaint was stated to be present, but the presiding officer was stated to be busy with emergency work, with the result that the file was directed to be placed before the Court for suitable orders on 18th September, 1985. It was added that the file should be sent to the Additional District Magistrate on 20th September, 1965. On 18th September, 1965 again, the complainant was present with his counsel, but the Presiding Officer was again busy with some emergency work, with the result that the case was adjourned to 20th September, 1965 for suitable proceedings. It was added that the file should be sent to the Additional District Magistrate on 20th September, 1965. On 18th September, 1965 again, the complainant was present with his counsel, but the Presiding Officer was again busy with some emergency work, with the result that the case was adjourned to 20th September, 1965 for suitable proceedings. It was thereafter that the papers were according to the order, forwarded to the Additional District Magistrate. On 20th September, 1965, the complainant was present with his counsel and it was noted that the file had been sent to the Additional District Magistrate, but its receipt had not yet arrived. The file was thus ordered to besent on 27th September, 1965 and the complainant was also directed to appear in the Court of the Additional District Magistrate on that date. This order is again difficult to understand. On 27th September, 1965, Shri R Jain, who was presumably A. D. M. , made an order that the accused were to be proceeded against only under section 323, I. P. C. The case was adjourned to 15th October, 1965. On that date, the complainant was present, and so were the accused persons, who were released on bail by Shri R. Jain. The case was transferred to a Magistrate who was to hold the trial and the parties were directed to appear in the transferee Court on 19th October, 1965 On that date, Shri A. C Kher, Magistrate 1st Class, adjourned the case to 24th November, 1965 tor evidence, the complainant being directed either to bring his witnesses with him or to summon them. He was required to deposit the process-fee within two days. On 24th November, 1965, the complainant ana both the accused were present, but a request was made by the complainant s counsel for adjournment because of his being busy in the High Court. The case was accordingly adjourned to 1st December, 1965 for evidence. On that date, however, though the complainant and the accused were present, the case could not be taken up on account of, what is described by the learned Magistrate to be, rush of work. The case was thus adjourned to 22nd January, 1966. The case was accordingly adjourned to 1st December, 1965 for evidence. On that date, however, though the complainant and the accused were present, the case could not be taken up on account of, what is described by the learned Magistrate to be, rush of work. The case was thus adjourned to 22nd January, 1966. On that date, in the presence of the compinant and the accused persons, the statement of one witness was recorded, No other witness being present, the case was adjourned for the remaining evidence to 10th February, 1966. The impugned order made on 10th February, 1966 has already been reproduced. 144 ( 3 ) IT is very strongly argued on behalf of the complainant that the learned Magistrate has erred in acquitting the accused and not waiting, at least for some time, for the complainant to appear and prosecute the case. According to the counsel s argument belore us, the complainant had just gone to the W. C. for a few minutes and the case was disposed of in his absence by acquitting the accused persons. This order is descrided to be contrary to the provisions of section 247, Criminal Procedure Code, and also violative of the instructions contained in the High Court Rules and Orders, Vol. III, Chapter 1 F. Our attention has also been drawn to Ram Narain v. Mool Chand, Single Bench decision of the Lucknow Bench, and to Naresh Prasad v. Mahavir Singh another Single Bench decision of the Allahabad court, in support of the appeal. ( 4 ) SHRI Parkash Narain has on behalf of the respondents supported the correctness of the impugned order by contending on the literal language of section 247, Criminal Procedure Code, that the learned Magistrate had no option and that he was bound, as a matter of law, to acquit the accused when the complainant did not appear on the case being called He has cited Natesa Naicker v. Mali Gramuni, (Yahya Ali J.) and Nagarambilli Torkya v. Matta Jag annatha (Devadoss add Waller, JJ.), for the legal position convassed by him. Let us first lead section 247 of the Code :- "247. Let us first lead section 247 of the Code :- "247. If the summons has been issued on 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, notwithstanding anything herein before, contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:- 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". The proviso seems to us to negative the respondents contention that the trial Magistrate is enjoined by premptory mandate to acquit the accused if the complainant does not happen to be present in Court when the case is called. The word shall , it may be remembered does not always necessarily cannote a mandatory intent on the part of the lawmaker. The purpose for which the provision is made and its nature, considered in its setting, the conected provisions and other similar matters, the serious general inconvenience or injustice to persons resulting from reading the provision as directory or mandatory, whether the cause of justice is promoted or retarded as a consequence of construing the provision one way or the other, have all to be taken into account by the judicial mind for the purpose of construing the word "shall" which, normally, may of course be considered to suggest an imperative tendency. No general rule running in fixed grooves is either possible or desirable to be prescribed, and indeed each case depends on the object sought to be achieved by the legislature. Not being rigid and fixed the construction of the word "shall" in a given staute must be adapted to the fitness of the matter of "he statutory provision. Realising that punishment of crimes by the State Courts of law and justice serve as a check on the tendency by the private aggrieved parties themselves to take revenge by 1. A 1. R 1966 All 96 3. A I. R 1918 Mad. 45 2. AIR 1960 All, 507. 4. AIR 1226 Mad. 1009. Realising that punishment of crimes by the State Courts of law and justice serve as a check on the tendency by the private aggrieved parties themselves to take revenge by 1. A 1. R 1966 All 96 3. A I. R 1918 Mad. 45 2. AIR 1960 All, 507. 4. AIR 1226 Mad. 1009. 145 acts of violence and lawlessness for the actual or supposed wrong considered to have been done to them, and in view of the fact, that in the trials of criminal cases according to our Code, normally there is neither a general provision for a review nor for sitting aside dismissals in default, we are disinclined to impute to the Legislature a rigid mandatory intent in enacting section 247 such as is suggested on behall of the respondents. The fact that the order of acquittal would be final, is also not unimportant in discovering the legislative intent. ( 5 ) WE may now turn to the rules made by the High Court on this subject. They are contained in chapter I-F, Vol. Ill, High Court Rules and Orders, and may be read with advantage. "dismissal OF CASES IN DEFAULT. Some magistrates are inclined to dismiss cases in default hastily. 2. Before a case is dismissed by reason of the absence of complainant, the magistrates should carefully consider- (a) whether such an order is legal ; and (b) whether it is Justified by the circumstances. In view of the proviso added to section 247 of the Code by Act 26 of 1955, even in summons cases the magistrate can proceed with the case on complainant s failure to attend when he considers that complainant s personal attendance is not necessary. Reasons should always be recorded where a case is dismissed in default. 3. In applications for revision of orders dismissing complaints or cases instituted on complaint, by reason of the absence of the complainant, it is frequently urged - (a) that the complainant was not called ; (b) that the case was dismissed very early in the day. ; or (e) that the magistrates being on tour, the compalnant had no or insufficient, notice of the place of sitting (ii) The magistrates records often furnish no definite information on any of these points. ; or (e) that the magistrates being on tour, the compalnant had no or insufficient, notice of the place of sitting (ii) The magistrates records often furnish no definite information on any of these points. The following instructions are accordingly issued for guidance to subordinate Courts : (a) magistrate should not dismiss complaints or cases instituted on complaint without giving complainants full opportunity for apperarance. Ordinarily, it a complainant is absent when his case is first called on, his case should be called on again later, and the time of dismissal should always be noted on the record (b) When the magistrate is on tour, complaints or cases instituted on complaint should not be dismissed unless the complainant has had due notice of the place of hearing. (e) In carrying out these instructions magistrates should bear in mind that if a summons cases in which and summons has been issued, is dismissed on account of the absence of the complainant, the accused must be acquitted, unless the magistrate decides to proceed with the case under proviso recently added to section 247 of the Code. A warrant-case, in which proceedings have been instituted on complaint, can only be dismissed in the absence of the complainant, if the offence is one that can lawfully be compounded, or is not a cognizable offence. In the later case the magistrate may, in his discretion, discharge the accused at any time before a charge has been framed, under section 259 of the Code of Criminal Procedure. If the 146 offence is cognizable or is one that cannot lawfully he compounded the magistrate is bound to proceed with the case and decide it on its merits. (d) Section 247 of the Code of Criminal Procedure does not apply when the entire evidence in a case has been concluded and the case has been adjourned only fir Judgment without the attendance of the complainant having been specially directed. These rules remove all doubts on the point and quite clearly suggest that the Magistrate has to exercise his judicial discretion in making an order under section 247 of the Code. These rules remove all doubts on the point and quite clearly suggest that the Magistrate has to exercise his judicial discretion in making an order under section 247 of the Code. Rule 3 (ii) contains the broad instructions for the guidance of the Magistrate, prominently bringing out the grave responsibility which rests on the trying Magistrate when deciding whether to adjourn the case or to proceed with the trial, even in the absence of the complainant, or to acquit the accused. They completely rule out arbitrariness or fixed automatic rigidity of action on the part of the Magistrate. Speaking with respect, we think that these rules are supported by considei alions of practical good sense and are designed to promote the cause of substantial justice Indeed, the view taken by us was also favoured in The State v. Gurdial Singh Gill, Krishan Das v. Manohar Lal, and Prabh Dyal v. R. Mudgil". ( 6 ) THE decision in the case of Nagarambilli, on which Shri Parkash Narain very strongly relied, was a revision and was given before the amendment in the proviso to section 247 made in 1955. This amendment does seem evidently to widen the scope of the proviso, thereby making section 247 more liberal in favour of complainants. Besides, even one of the learned Judges, Waller, J. , expressly recorded his view that a Magistrate would be well advised to give a complainant, whose case is called early in the day, some latitude before section 247 is applied. Devadoss, J. also declined to interfere, for one reason, because the case was before that Court on revision. This case also appears to have been dissented from by the Gujarat High Court in Mafatlal Manilal Shah v. C. C. Shah. It would be obvious that there are more reasons than one for us not to follow this decision. The decision in the case of Natesa Naicker was also in a revision and was given prior to the amendment of 1955. In that case, however, the learned Single Judge recognised the power in the Magistrate to adjourn the case tor proper reasons. We need say nothing more about this case as well. ( 7 ) THE object of section 247, as it emerges on a consideration of the scheme of the Code of Criminal Procedure is to ensure that private complainants are not dilatory in prosecuting the criminal proceedings. We need say nothing more about this case as well. ( 7 ) THE object of section 247, as it emerges on a consideration of the scheme of the Code of Criminal Procedure is to ensure that private complainants are not dilatory in prosecuting the criminal proceedings. As the history of the present case shows, the complainant-appellant has by no means been dilatory in conducting the proceedings: on the contrary, he has been earnestly and diligently prosecuting the case with all seriousness: the acquittal of the accused based merely on the absence of the complainant, when the case was called, without considering the merits, in face of the dire consequences of such an order, clearly calls for a conscientious application of judicial mind by the learned Magistrate. The order of acquittal being appealable, it is only fit and proper that it must disclose on its face compliance with the instructions contained in Rule 3 (ii) reproduced above and any infirmity in this respect would render the order open to examination by this Court. In the case in hand, the impugned order on its face reflects its arbitrary and unjudicial character. It 5. A. . I. R. 1901 Punj 71. 7. (1966) 68p. LR. 363 6 (1964)66 P. L. R. 71 8. AIR 1965 Guj. 180 147 is not possible to know from the record as to when the case was first called and what was the interval, whereafter it was called the second and third times. Of coarse, the time of making the order of acquittal contained in the order, but that by itself is quite clearly not a sufficient compliance with Rule 3 ii ). The order betrays absence of judicial approach by the learned Magistrate and his unawareness of the relevant legal provisions and of tha binding decisions of the High Court. Administrative convenience seems to us to have weighed with him more than the cause of justice. The present case has only added one more instance to the list of cases which have came to tha notice of this Court disclosing the poor and unsatisfactory quality of criminal justice administered in the Courts of Magistrates in Delhi which, as the capital of Republic, is expected to provide to its citizens ideal administration of justice befitting a welfare democratic set up which has Justice as its most cherished and prominent beacon-light in the Preamble of the Constitution. One of the main reasons for this serious but avoidable infirmity in the criminal justice as administered in the magisterial Courts of Delhi is the conferment of judicial powers on executive officers, who being far too busy with executive functions, understandably find it difficult to imbibe the essential judicial spirit required in satisfactorily dealing with court cases. For the administration of criminal justice to inspire confidence of the people that they may not, in frustration, be overtaken by the natural human instinct of revenge, it is of the greatest importance that the Courts possess the requisite ability, aptitude, objective approach and knowledge of law and have reasonably adequate time at their disposal to deal with criminal cases conscientiously with the necessary detached judicial poise and in an atmosphere of judicial calmness. ( 8 ) CONSIDERATIONS of administrative or executive convenience is foreign to and has no place in the judicial mind and arbitrariness is tabooed in judicial orders. This Cou"t has more than once emphasised the emergent importance of improving the quality of criminal justice in Delhi which provides to the visitors from abroad that first glimpse of our constitutional set up and oar democratic Constitution at work We accordingly consider it proper to repeat once again that the sooner tha criminal administration of justice is improved in Delhi, the better for the Rule of Law, for our orderly society and for our democratic mode of life. ( 9 ) IN the result, this appeal succeeds and allowing the same, we set aside the impugned order of acquittal and remit the case back to the learned Magistrate tor further proceedings in accordance with law and in the light of the observations made above. If the learned Magistrate is overworked on the executive side, we hope he would seek relief from other unjudicial work as envisaged in the High Court Rules and Orders, Vol. III, Chapter 1-A, Rule 9. Judicial cases must never be allowed to suffer if our civilised orderly democratic life is to survive and grow to a healthy stature. It must never be forgotten that nothing makes the citizens more content with their state than unadulterated, pure and speedy justice and nothing makes people more frustrated than unjust or poor quality of justice. Judicial cases must never be allowed to suffer if our civilised orderly democratic life is to survive and grow to a healthy stature. It must never be forgotten that nothing makes the citizens more content with their state than unadulterated, pure and speedy justice and nothing makes people more frustrated than unjust or poor quality of justice. ( 10 ) THE parties are directed to appear in the Court below on 6th November 1967 when another date would be given for further proceedings in accordance with law and the foregoing directions.