JUDGMENT : S. Acharya, J. - This is a complainant's appeal against the order dated 16-1-1967 passed by the Sub Divisional Magistrate, Athagarh, acquitting the accused-Respondents u/s 247, Code of Criminal Procedure . 2. The Sub-Divisional Magistrate, Athagarh, took cognizance of the complaint filed on 24-12-1966 under Sections 188/143/426, Indian Penal Code against eight accused persons, Respondents in this appeal, and issued summons against them for their appearance on 13-1-1967. 13th and 14th being holidays and 15th being a Sunday, the record of the case was put up before the learned Magistrate on 16-1-1967 when the following order was passed by the Court: 16-1-1967, 13th and 14th being holidays and 15th being Sunday, the record is put up today. S.R. back after service. The complainant's lawyer files hazira. The complainant is called but does not appear. The case was posted to 13-1-1967 for appearance. That date being declared a holiday, the record is put up today. The accused persons are acquitted u/s 247, Code of Criminal Procedure. S.D.M. Later, on the same day, the complainant filed a petition for review of the aforesaid order praying for the restoration of his above complaint. That petition however was not taken up for consideration on that day and was put up on 30-1-1967 when the said petition was dismissed as nobody moved the same. For all intents and purposes, in this appeal we are concerned with the order dated 16-1-1967 quoted above. 3. There is nothing in the order-sheet to the effect that the accused persons were actually present in the Court on the aforesaid date though a hazira filed on their behalf is in the record. The impugned order shows that a hazira on behalf of the complainant was also filed by the complainant's lawyer. The petition filed on behalf of the complainant on the same date immediately after the passing of the impugned order bears the signature of the complainant, and in paragraph 2 therein it is mentioned that the complainant was present in the Court precincts and when the case was called out he hurried towards the Court room but just before he reached there, the aforesaid order acquitting the accused persons u/s 247, Code of Criminal Procedure was passed by the learned Magistrate. It is also mentioned therein that the complainant attended the Court on the 13th and 14th of January, 1967 but his attendance could not be recorded as both the aforesaid dates were declared to be holidays. From the aforesaid petition and the order-sheet it becomes evident that the complainant was definitely present near about the Court precincts on 16-1-1967 when the impugned order was passed by the learned Magistrate, but he could not somehow physically present himself before the Magistrate immediately at the time when the case was called out by the Court. 4. Mr. Mohanty, the learned Counsel for the complainant-Appellant, seriously contended that the aforesaid order is patently arbitrary and illegal, passed as a matter of course, without any judicial consideration, and as such is liable to be set aside. The order of acquittal does not disclose on its face as to what actually prompted the Magistrate to immediately record such an order u/s 247, Code of Criminal Procedure. The effect of such an order is obviously far fetched as it is visited with all the consequences u/s 403, Code of Criminal Procedure. The wordings in the main Section 21, Code of Criminal Procedure "unless for some reasons be thinks proper to adjourn the hearing of the case to some other day" and the new proviso added to the said section by the amending Act of 1955 clearly clothe a Magistrate with wide discretionary power to examine the facts and circumstances of the case and to take all possible facts into consideration before actually passing an order of acquittal under the said section. In view of the discretionary power vested in the Magistrate, heavy responsibility rests on the trying Magistrate in deciding whether to adjourn the case or to record an order of acquittal on the absence of the complainant. There is nothing in the said section by which the Magistrate should feel obliged to acquit the accused immediately on the absence of the complainant when the case was called. Section 247, Code of Criminal Procedure does not call for such an automatic action on the part of the Magistrate to record an order of acquittal in any case whenever the complainant is absent on call. Section 247, Code of Criminal Procedure does not call for such an automatic action on the part of the Magistrate to record an order of acquittal in any case whenever the complainant is absent on call. The discretion vested in the Magistrate being a judicial one it should be cautiously exorcised on judicial considerations; and the order acquitting the accused under this section being appeal able, the Magistrate should be able to state justifiable reasons for passing such an order of acquittal and not to adjourn the bearing of the case to some other date on that account. In this connection the decision in Chinnam Ramnath Patro Vs. Chandramma Guni and Another Mohd. Yamin Vs. Zafar Mohammad and Others, and Naresh Prasad Mittal Vs. Mahavir Singh may be noted with approval. My decision in Sanatan Rout v. Sagari Dei and Anr. 36 C.L.T. 204 may also be seen. 5. Considering all the facts and circumstances of the case and the fact that the Magistrate did not even pause for a moment to enquire if really the complainant was present near about the Court, specially in view of the Hazira filed on his behalf on that date it appears to me that the Magistrate probably was labouring under a wrong notion that he was bound under the law to acquit the accused immediately as and when the complainant was found absent on call. Such an arbitrary order passed in an automatic manner cannot be allowed to stand. 6. In the result, 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 hereby directed to appear before the Court below by the 24th November, 1969 when another date would be fixed by the said Court for further proceedings in the matter in accordance with law. Final Result : Allowed