Judgment Medini Prasad Singh, J. 1. -this appeal by the complainant Rajdeo Singh is from an order dated 10th September, 1973 passed by a Judicial Magistrate, dinapur acquitting the accused psrsons of an offence under section 342 of the indian Penal Code on account of the absence of the complainant. The order of acquittal was passed under section 247 of the Code of Criminal Procedure. 2. The prosecution case was that a girl, named, Kamlawati, daughter of the complainant, was married to respondent no.2 Rajendra Singh. She was not good looking. The accused persons wanted to get rid of her. They confined her in a room and were attempting to kill her by throtling her on the night of 20th August, 1972 in their own house. However, the door was broken in the circumstances mentioned in the complaint and her life was saved. A complaint was made under sections 307/342 of the Indian Penal Code. But, cognizance was taken only under section 342. 3. On the 19th August, 1973 the Magistrate fixed 10th September, 1973 only for stating the substance of the accusation to the accused. On 10th september, 1973 the Magistrate passed the following order : "the accused are present. Complainant absent. This is a summons triable case. The accused are acquitted under section 247 Criminal procedure Code. Latter a petition has been filed on behalf of complainant for coming late. Let it be kept with record. " 4. Learned counsel appearing for the complainant appellant has argued that 10th September 1973 was a date appointed only for explaining the accusation to the accused persons as required by section 242 of the Code of Criminal procedure, and not for the appearance of the accused or any day subsequent thereto to which the hearing was adjourned and hence the Magistrate had no power to acquit the accused on that day. In other words his argument is that under the provisions of section 247 of the Code of Criminal Procedure, a Magistrate, jurisdiction to acquit an accused arises only if the complainant does not appear either (i) on the day appointed for the appearance of the accused, or (ii) on any day subsequent thereto to which the hearing may be adjourned. In other words his argument is that under the provisions of section 247 of the Code of Criminal Procedure, a Magistrate, jurisdiction to acquit an accused arises only if the complainant does not appear either (i) on the day appointed for the appearance of the accused, or (ii) on any day subsequent thereto to which the hearing may be adjourned. He has relied on Brundaban Bastia V/s. Birabar Bastia [ilr 1962 cuttack 547j in which it was observed at page 549 : "it is reasonable to interpret the word hearing occurring in section 247, criminal Procedure Code, in the light of the meaning given to the word hear occurring in sub-section (1) of section 244, Criminal procedure Code. That word, in the context, would apply only when the evidence of the complainant and his witnesses is being taken by the court, or when an adjournment is granted for that purpose, if, therefore, on the unchallenged facts, it is clear that the order of acquittal was passed under section 247, Criminal Procedure code, on a date fixed neither for the appearance of the accused nor for the hearing of the case, that order would be without jurisdiction. " In my opinion, the above observation applies with full force to the facts of the present case. No date had been fixed in the present case for hearing. The date 10th September, 1973 was fixed only for explaining the particulars of the offence to the accused persons. It must, therefore, be held that the Magistrate passed the impugned order on a wrong date, not contemplated by the section, and his order was illegal and without jurisdiction. 5. Learned counsel appearing for the accused respondents relied on Emperor v, Laxmi Prasad Tulsiram and others (AIR 1940 Nagapur 357) where it was held that the expression date fixed for hearing used in section 247, Criminal procedure Code would include not only the date on which the witnesses were actually examined, but also the dates to which the case may be adjourned from time to time, to enable the court to take some step or other towards the progress of the trial. This Nagpur case is clearly distinguishable because, there some of the accused had actually entered appearance and the case was adjourned to a particular day for the appearance of another accused. This Nagpur case is clearly distinguishable because, there some of the accused had actually entered appearance and the case was adjourned to a particular day for the appearance of another accused. The learned Judge was careful enough to observe as follows : "accused 1 who was admitted to bail was bound to appear on the 12th september, 1939, and as he had undertaken to produce his wife on this date it must also be treated as a date appointed for the appearance of this accused and accused No.1 and further to see what should be done in the case after seeing the return to the processes against accused 3. It is thus clear that in the Nagpur case the order of acquittal was passed on a date fixed for the appearance of two out of three accused persons. But, in the instant case the date 10th September, 1973 was not fixed for appearance of any of the accused persons. The accused had already appeared. It was also not a date for hearing. The Nagpur case, therefore, is not applicable to the facts of the present case. If, however, the Nagpur case is understood to lay down a different principle than that enunciated in the Cuttack case of Brundaban (supra), i would respectfully differ from the same. 6. Learned counsel for the appellant pointed out another infirmity in the order of the Magistrate. He said that the Magistrate in the preset case did not apply his mind to the question whether there was any good reason for adjourning the hearing of the case or for dispensing with the personal attendance of the complainant and hence his order of acquittal is bad in law. He relied on State of Bihar V/s. Ayodhya Sharma Sudhakar and others (1973 BLJR 59) where in paragraph 14 at page 65 it was observed : "it seems to me that a Magistrate is under a duty, before acquitting the accused in the absence of the complainant under section 247 of the code, to apply his mind to the question whether there are any good reasons for adjourning the hearing of the case or for dispensing with the personal attendance of the complainant. If he finds that there is no reason for either he is bound to acquit the accused and not pass any other order. . . . If he finds that there is no reason for either he is bound to acquit the accused and not pass any other order. . . . I am, therefore, satisfied that the order of acquittal under section 247 of the Code passed by the learned magistrate is illegal and improper. " In my opinion, this case also helps the appellant. In the present case also the magistrate did not consider whether the presence of the complainant was necessary or not for the further progress of the case before he acquitted the accused, nor did he apply his mind before acquitting the accused, to the question whether there was any good reason or not for adjourning the hearing of the case to another date. 7 It was next pointed out on behalf of the appellant that no acquittal order should have been passed by the Magistrate without complying with the provisions of section 242 of the Code of Criminal Procedure, and, if he did so, it was not a sound exercise of discretion. He has cited the decision in V. N. Soral V/s. Mohan Poonamia Jain and another (1976 Cr LJ 1228 ). The principles laid down in this case fully support his contention. In that case the plea of the accused had not been recorded under section 242. The case went on being adjourned on one ground or other. Ultimately on 7.5.1971 the Magistrate dismissed the complaint under section 247. On that day neither the complainant nor the accused were present. It was held that the dismissal of the complaint under the circumstances could not but be capricious and arbitrary. 8. Lastly, it was contended on behalf of the appellant that the order of the Magistrate dated 10th September, 1973 was completely silent on the point whether the case was called out or not and for this reason also, the order is improper. The contention is correct. The order of the Magistrate does not say whether the case was called out or not. It is not at all known whether the case was called out and whether it was called out at proper time. From the petition filed by the complainant on that day, it appears that the complainant presented his application at about 11.30 a. m. for cancelling the order of acquittal. It is not at all known whether the case was called out and whether it was called out at proper time. From the petition filed by the complainant on that day, it appears that the complainant presented his application at about 11.30 a. m. for cancelling the order of acquittal. In my opinion, it was the duty of the Magistrate to mention in the order-sheet that the case was called out. For this reason also, his order, I think, is improper. 9. Learned counsel appearing for the respondents submitted that there was no allegation in the complaint petition against the lady accused and, hence, the trial should not proceed against her. He has read out the complaint before me. I am not inclined to express any opinion on that point at this stage. It will be open to the lady accused to move the Magistrate for discharging her on that ground. If the Magistrate finds that there is no allegation against her, he will certainly discharge her. 10. For the reasons already expressed, I hold that the order, dated 10th september, 1973 passed by the Magistrate is without jurisdiction The order is, therefore, set aside and the case is sent back to the Magistrate for hearing according to law. Application allowed.