JUDGMENT Mohd. Hamid Hussain, J. - This is a reference made by the learned Sessions Judge, Budaun, for quashing the order dated 28th September, 1970 passed by the magistrate. 2. The brief facts are that a complaint under section 13 of the Roadside Land control Act was filed by the Distt. Engineer, P.W.D. on 8th June, 1968. The case was tried by the magistrate and some evidence in the case was also recorded. The prosecution wanted to adduce further evidence for which time was granted by the court on several dates and the last date fixed in the case for adducing the evidence was 21st February 1969. On this date an application was moved by the Pairokar of P.V.D. Budaun for adjournment of the case on the ground of the counsel being out of station. On this application the magistrate dealing with the case passed the following order : "The case was postponed on 30th January 1969 on the clear understanding that no further adjournment will be allowed. Still today the evidence has not been produced and again adjournment is asked for. From the persual of the file I find that the case has had to be postponed for want of evidence from the side of the applicant (P.W.D.) for six times and again the date is asked for. This is harassment to the other party. The file is, therefore, consigned and the accused is discharged under section 249 Cr.P.C." After that order, an application was moved by the lawyer for P.W.D., Budaun, thatthe evidence and the file of the case which had been consigned be requisitioned and the case be proceeded further. On this application on the same day the magistrate ordered the requisition of the file and to be put up on 2nd June, 70. The reopening of the case was objected to by the applicant Darbari Lal through his application dated August 1, 1970. On this objection the court passed the following order: "Parties want time for arguments on this Fixed 25th/9 as legal assistance will not be available before 25/9. After hearing the arguments of the parties the magistrate passed the impugned order on 28th September 1970 rejecting the objection of the applicant and directing the complainant to proceed with the evidence. 3. On this objection the court passed the following order: "Parties want time for arguments on this Fixed 25th/9 as legal assistance will not be available before 25/9. After hearing the arguments of the parties the magistrate passed the impugned order on 28th September 1970 rejecting the objection of the applicant and directing the complainant to proceed with the evidence. 3. Aggrieved by the aforesaid order, the applicant went up in revision on the ground, inter alia, that the order dated 21st February, 1969 passed by the magistrate discharging the applicant under section 249 Cr.P.C. was, in fact, an order of acquittal purported to have been passed under section 247 Cr.P.C. In support of this contention certain decisions were cited by the applicant and the learned Sessions Judge has made the recommendation to this Court that the order dated 21st February, 1969 was, in fact, an order of acquittal passed under section 247 Cr.P.C. and, therefore, there was no question of the re-opening of the case against the applicant and the impugned order dated 28th September, 1970 should be quashed. 4. Sri H. C.Rastogi, learned counsel for the applicant has appeared in support of the reference and Sri S. N. M. Tripathi, learned counsel for the State has appeared to oppose the reference. 5. The learned counsel Sri Rastogi has contended that the order dated 21st February 1969 discharging the applicant was, in fact, an order of acquittal and, therefore, the applicant cannot be tried again in respect of the offence for which he has been acquitted. In support of his contention the learned counsel has placed reliance on a decision of this Court reported in A.I.R. 1961 Alld. 377. He has placed reliance on the observations of this Court that S. 249 Cr.P.C. is applicable only to cases instituted otherwise than on a complaint and, therefore, the proper provisions applicable was under section 247 Cr.P.C. The facts of that case are not similar to the facts of the present case. In the instant case on 21st February, 1969 an application was moved by the Pairokar of the P.W.D. for the adjournment of the case on the ground that the counsel for the Department was out of station. In the instant case on 21st February, 1969 an application was moved by the Pairokar of the P.W.D. for the adjournment of the case on the ground that the counsel for the Department was out of station. On this application the magistrate passed the order discharging the applicant u /S. 249 Cr.P.C. In that order the ground taken by the magistrate for discharging the applicant was that on several dates adjournment had been taken on behalf of the complainant for producing evidence. S. 247 Cr.P.C. only contemplates of an acquittal in the event of the absence of the applicant. In the instant case the complainant was duly represented by his pariokar who moved the application for adjournment on ground of absence of the counsel of the Department. It could not, therefore, be said that the complainant was absent. Sri Rastogi contends that complainant does not include a Pairokar and since the complainant himself was not present and, therefore, S. 247 Cr.P.C. will he applicable. 6. The record shows that the complaint in the case was filed under the signature of the District Engineer P.W.D Budaun. It has been the view of this Court that public servant under whose signature a complaint is filed is not necessarily required to be present on each hearing of the case and in his absence the complaint cannot be dismissed and the accused persons acquitted. These views have been expressed in the cases reported in 1963 A.L.J. 989 and 1964 A.L.J. 598. Furthermore, the order dated 21st February, 1969 on the basis of which it is asserted by the learned counsel that the applicant had, in fact, been acquitted under section 247 Cr.P.C. does not mention a word about the absence of the complainant on that date. In fact, the ground on which the magistrate discharged the applicant was the non-production of evidence on behalf of the complainant. On a scrutiny of the record it is apparent that after the filing of the complaint some prosecution evidence was recorded by the magistrate in the case and applications had been moved on behalf of the complainant for summoning the witnesses and the court had ordered on those applications for the issue of summons. On a scrutiny of the record it is apparent that after the filing of the complaint some prosecution evidence was recorded by the magistrate in the case and applications had been moved on behalf of the complainant for summoning the witnesses and the court had ordered on those applications for the issue of summons. There are on record two applications dated 13th September, 1968 and 5th October 1968 moved by the complainant for the issue of summons and it also bears the endorsement of the magistrate for the issue of summons. From this it is clear that the magistrate had proceeded to record some of the evidence and if he did so, then he could have considered the evidence that was available on record, for either convicting or acquitting the applicant, but he refrained from adopting this course and instead, directed the case to be consigned. While doing so the magistrate added a last sentence that the accused is discharged u /S. 249 Cr.P.C. The magistrate could neither acquit under section 247 Cr.P.C. nor discharge under section 249 Cr.P.C. From an inspection of the record I am also satisfied that efforts were made on behalf of the complainant to produce evidence. There is an order of the magistrate dated 4th December, 1968 on record which is to the effect : "Tody is the seventh date of evidence to he adduced by the P.W.D. Engineer, Budaun, as complainant in the present case but his Criminal Panel Lawyer has applied for further adjournment of the case for the said purpose. This time he is allowed last opportunity for 18th December 1968. No other adjournment will be allowed in future and the evidence of the said department will be treated as closed." 7. From the above order it is apparent that the evidence was recorded in the case. Once the magistrate had directed the issue of summons to the witnesses on the application of the complainant, then he ought to have enforced their attendance if the complainant had failed to produce them on the date fixed. 8. Having considered the circumstances of this case I am of the view that the order dated 21st February, 1969 passed by the magistrate was only an order consigning the file of the case for the time being and the impugned order dated 28th September, 1970 rejecting the objection of the applicant calls for no interference. 8. Having considered the circumstances of this case I am of the view that the order dated 21st February, 1969 passed by the magistrate was only an order consigning the file of the case for the time being and the impugned order dated 28th September, 1970 rejecting the objection of the applicant calls for no interference. The case is an old one. It shall be proceeded with expeditiously by the court below. 9. The reference is rejected.