JUDGMENT : S. Acharya, J. - This is a complainant's appeal against the order dated 16-2-1967 passed by a 2nd Class Magistrate at Bhadrak acquitting the accused persons u/s 247, Code of Criminal Procedure due to complainant's absence from the Court on the aforesaid date. 2. The impugned order was passed in a Summons Case instituted on complaint on 2-3-1966. On 16-2-1967 the complainant, for the first time, remained absent from the Court on grounds of illness, and on that date a petition supported by a medical certificate was filed on his behalf praying for an adjournment of the case, enabling him to be present in Court on the next date along with his witnesses. The defence filed an affidavit stating that the plea in the complainant's petition for his absence from Court was incorrect and untrue. The Court below then passed the impugned order as follows: 16.2.67. Accused is present. Female accused is on representation through learned Advocate. Complainant is absent on his health ground, supported with a medical certificate. But the defence files an affidavit to this effect reporting the plea of adjournment taken by the complt. (sic). Thus this being the date of hearing the accused persons are acquitted u/s 247, Code of Criminal Procedure. Sd. B. Misra 16.2.67 3. It was seriously contended by Mr. Kar, the learned Counsel for the complainant Appellant, that the aforesaid order is patently an arbitrary one, passed as a matter of course in an automatic manner, without application of the judicial discretion, vested in the Court, and as such is liable to be set aside. 4. In the aforesaid order the Magistrate did not record any specific order rejecting the complainant's petition for an adjournment filed on that date. It is evident from the last sentence of the aforesaid order that the Magistrate was labouring under an impression that it was obligatory on his part to acquit the accused as he found the complainant absent from the Court on the above mentioned date fixed for the hearing of the case, without any consideration of any other aspect of the matter. 5. It is now well settled that by the mere mention of the word "shall" in Section 247, Code of Criminal Procedure there is no peremptory mandate on the trial Court to acquit the accused, as soon as the complaint remains absent from Court on a date of hearing. 5. It is now well settled that by the mere mention of the word "shall" in Section 247, Code of Criminal Procedure there is no peremptory mandate on the trial Court to acquit the accused, as soon as the complaint remains absent from Court on a date of hearing. The new proviso added to the said section by the amending Act of 1955 and the words "unless for some reasons he thinks proper to adjourn the hearing of the case to some other day" in the main section, clearly vest a wide discretionary power on the Magistrate to examine the case on its own merit and not to act in an automatic manner to dispose of the matter by acquiring the accused immediately on the absence of the complainant. An order of acquittal passed u/s 247, Code of Criminal Procedure is visited with all the consequences u/s 403, Code of Criminal Procedure, and the complainant has to face the dire consequences of such an order. The effect of such an order being far fetched a Magistrate must act in a cautious and judicious manner, and there should not be any 'fixed automatic rigidity of action' or expression of arbitrariness on his part in disposing of a matter under the aforesaid section. The discretion of the Magistrate in this connection is designed to promote the cause of substantial justice, and should be cautiously exercised only when prompted by judicial considerations. So, therefore, the order itself should show that the wide discretion vested in the Magistrate has been cautiously exercised on judicial considerations and for that the Court, while disposing of a matter under this section, should be able to state justifiable reasons for acquitting the accused for the absence of the complainant and not to adjourn the hearing of the case to some other date on that account. The cases reported in Chinnam Ramnath Patro Vs. Chandramma Guni and Another and AIR 1960 All 5073, are some of the decisions which lend support to an that has been stated above. 6. It was urged by Mr. Kar that the complainant was never absent from the Court on any of the many previous dates in the course of nearly about a year for which the case remained pending in the Court below. This fact is fairly admitted by the learned Counsel for the Respondents. 6. It was urged by Mr. Kar that the complainant was never absent from the Court on any of the many previous dates in the course of nearly about a year for which the case remained pending in the Court below. This fact is fairly admitted by the learned Counsel for the Respondents. It is also found that on 4 or 5 previous occasions the Court had to adjourn the case due to the absence of one or the other of the two accused in this case. The Magistrate in disposing of the matter has not at all taken any of the above factors into consideration, and does not at all state if, how and why he rejected and/or disposed of the petition filed by the complainant. There is absolutely no discussion about the merits of the complainant's adjournment petition supported by a medical certificate, or the affidavit filed by the defence. That being so, in the context of 9, 11 that has been stated in the previous paragraphs this is a factual in which such an order of acquittal passed u/s 247, Code of Criminal Procedure cannot be maintained and has to be set aside. 7. In the result, therefore, the impugned order of acquittal is hereby set aside, and I remit the case back to the learned Magistrate for further proceedings in accordance with law. The parties are being directed to appear in the Court below on the 3rd October, 1969 when another date may be given for further proceedings in the said Court in accordance with law.