Judgment.- This criminal appeal is preferred by the complainant against the acquittal of the respondent-accused by the Judicial IInd Class Magistrate, Ponnur, invoking section 247, Criminal Procedure Code. The order of the learned Magistrate dated 26th October, 1964 reads as follows: “The case was called on for hearing to-day to which it had been adjourned. The complainant not having present either in person or by pleader, the accused is acquitted under section 247, Criminal Procedure Code.” Mr. Bheema Raju appearing for the appellant contended that the Magistrate was in error in ordering the acquittal of the respondent for the mere reason that he was absent at 11 A.M., that the Magistrate should have waited till the end of the Court hours, i.e., till 5 p.m. and if it was found that the complainant had not come to the Court even by then, it is then that he could have exercised his jurisdiction under section 247, Criminal Procedure Code and acquitted the accused. The following facts may be necessary to appreciate the contentions raised by the learned Advocate for the appellant. The complainant preferred a complaint against the respondent before the Judicial IInd Class Magistrate, Ponnur disclosing offence under sections 323, 352 and 506, Indian Penal Code which are all summons cases. The case has been adjourned to 26th October, 1964 for hearing and it so happened that the complainant was absent at 11 A.M. It is the case of the complainant that he came at 11-30 A.M. and by then the Magistrate had pronounced the order. Then he made a copy application, obtained a copy of the order and then preferred the appeal. He had filed an affidavit of the Advocate in addition to his own affidavit explaining the reasons for being unable to be present at 11 A.M. when the Court had started its work. The affidavit of the complainant is to the effect that on the relevant date, 26th October, 1964, he went to Sri P. Seetharama Sarma at about 8 A.M. and engaged him to appear in the case and that the Advocate deputed his junior to go to the Court and file the Vakalat and take necessary steps to issue summonses to the witnesses. The affidavit of the Advocate confirms that the appellant came to him and engaged him and that he (the Advocate) deputed his junior to go to the Court and take necessary steps for the issue of processes to the witnesses for appearance but it does not show that the appellant was unable to get a bus in time. The affidavit of the appellant further shows that at Bapatla he could not get a bus till 10-30 A.M. and therefore he could not reach Ponnur till about 11 A.M. and by the time he reached the case was already called and disposed of. Therefore the question that falls for consideration in this appeal is whether the Magistrate was justified in acquitting the accused, as the complaint was absent at 11 A.M. when the case was called for hearing. It has also to be considered whether the Magistrate should wait till the end of the day or till such time that the complainant chooses to make his appearance, and then decide the action to be taken. According to Mr. Bheema Raju the Magistrate in this case has not exercised his discretion properly and he should have waited for a reasonable time before he invoked the provisions of section 247, Criminal Procedure Code. In support of his contention he relied on the following decisions. The Hyderabad High Court in United Industrial Corporation v. S.M. Hussain1, held that "No doubt section 247, Criminal Procedure Code gives a discretion to the Magistrate to dismiss a complaint for the non-appearance of the complaint but such a discretion must be used in a judicial manner. Dismissing a complaint at the early hours of the Court when there was other work before the Court was not justified, in our opinion, under the circumstances. There is another flaw in the order of the Magistrate. Under section 247 the accused can be acquitted and not discharged." The order of the Magistrate was set aside by the learned Judges for the reason that he had not exercised the discretion properly and that he committed an error in discharging the accused when he had to be acquitted. He next relied upon Slate of Bihar v. Deodar Jha2. Under section 247 the accused can be acquitted and not discharged." The order of the Magistrate was set aside by the learned Judges for the reason that he had not exercised the discretion properly and that he committed an error in discharging the accused when he had to be acquitted. He next relied upon Slate of Bihar v. Deodar Jha2. Dealing with the scope of section 247, Criminal Procedure Code the learned Judges of the Patna High Court observed: "The principle underlying section 247, Criminal Procedure Code, is that in cases where summons has been issued on complaint there must be someone in charge of the case to look to the progress of the trial. Sometimes, unlike the State cases, where State Officials are engaged for the prosecution, the Court’s time is unnecessarily occupied in calling out the witnesses who may be loitering here and there in the Court premises.......... It is for this reason that the Legislature, in its wisdom, thought it fit to lay the responsibility upon the private complainant who was to be penalised in case he appeared to be negligent by his unjustified absence. The Legislature also gave a discretion to the Court to adjourn the hearing of a case if it appeared to it to be reasonable. The section does not provide that the reason should be recorded in writing.................. Whether the Magistrate had exercised his discretion in the proper manner or in an arbitrary fashion will depend upon the facts of each case and it cannot be argued that the Court, as a matter of routine, should acquit the accused if the complainant happens not to be present on a particular date or time of hearing. " What happened in the above case is this. The complainant was absent on two dates, and on the first date he had filed a petition praying for an adjournment on the ground that he would be going out of station on that day. On the subsequent occasion he made a similar application and the Court granted adjournments on both the dates. The complainant was absent on two dates, and on the first date he had filed a petition praying for an adjournment on the ground that he would be going out of station on that day. On the subsequent occasion he made a similar application and the Court granted adjournments on both the dates. The opposite side when the matter came up in appeal to the High Court, contended that the Magistrate acted in excess of his jurisdiction in ignoring the mandate of the provisions of section 247, Criminal Procedure Code by granting adjournments, and the learned Judges of the Patna High Court held that it cannot be argued that as a matter of routine the Magistrate should acquit the accuse d whenever the complainant happens to be absent on a particular date or time of hearing, and each case has to be judged on its merits, and all that has to be looked into is whether the particular Magistrate has exercised his jurisdiction properly. This case does not help the complainant here. The next case relied upon is Ram Narain v. Mool Chand3. The learned Judge there observed: "A natural meaning should be given to the word ‘day’ in the phrase ‘upon the day appointed for the appearance’ occurring in section 247. That word cannot be interpreted as that moment in the day when the case is called. The word ‘day’ meant the whole of the working hours of the day and not the moment when the case is called. The failure of the complainant to appear on the day of hearing does not merely mean that he was not present at the time when the case was called but it also embraces and implies that the complainant when he appeared later in the day or who was present earlier in the day could furnish no adequate reason for his absence at that moment." What happened in that particular case is this: The witnesses summoned by the complainant were present when the case was called, but the complainant appeared a little later. It should be remembered that his Counsel was present along with the other witnesses and therefore the learned Judge felt that the discretion has not been properly exercised when there was a representation by the Counsel that the witnesses were present. It should be remembered that his Counsel was present along with the other witnesses and therefore the learned Judge felt that the discretion has not been properly exercised when there was a representation by the Counsel that the witnesses were present. The Orissa High Curt in Chinnam v. Chandramma4, held: "Thus, the section empowers the Magistrate either to acquit the accused, or to proceed with the case in the absence of the complainant or to adjourn the hearing of the case to some other day for reasons which he may think proper. No doubt, the section confers wide discretion on the Magistrate, but wider the discretion, the greater is the responsibility of exercising the same, and in all such cases the discretion should be exercised judiciously. " In the above case the complainant was present In the Court from the early hours but as he had suddenly to go to answer the calls of nature he left the Court premises but by the time he came back an order had been made acquitting the accused persons under section 247, Criminal Procedure Code on account of the non-appearance of the complainant. In view of the fact that the complainant was present throughout and for circumstances beyond his control he had to leave the Court premises, it was held by the Orissa High Court that it was a fit case for interference as the temporary absence of the complainant from the Court premises has been satisfactorily accounted for. The next decision relied on by Mr. Bheema Raju is Mafatlal v. C.C. Shah1. In that case the complaint was dismissed and the accused was acquitted on the ground that the complainant was absent when he was called out. He appeared a few hours later and represented that he was present in the Court but did not hear his name being called out. Therefore having regard to the facts and circumstances of that case that he was present in the Court and that he did not hear when his name was called, the revision was allowed. He appeared a few hours later and represented that he was present in the Court but did not hear his name being called out. Therefore having regard to the facts and circumstances of that case that he was present in the Court and that he did not hear when his name was called, the revision was allowed. Therefore it transpires from the abovesaid decisions that whether a Magistrate exercised his discretion under section 247, Criminal Procedure Code properly or not depends upon the facts of each case and all that the appellate Court has to look into is whether that discretion has been exercised properly and judicially having regard to the responsibility attached to the exercise of the discretion. The facts of the present case are totally different. It is not as though the Magistrate was informed by either the Counsel or anybody on behalf of the Counsel although a Counsel has been engaged at 8 A.M. The working hours of the Criminal Courts are fixed by the Rules of Practice and Circular Orders thereunder. The working hours of all Criminal Courts and Civil Courts in this State are between 11 A.M. and 5 P.M., and every Presiding Officer is expected to come to the Bench punctually at 11 A.M. If, as suggested by Mr. Bheema Raju latitude should be shown for complainants and the Magistrate must keep waiting for the complainants to turn up it will be a sad day for the Criminal Courts and difficult for any Criminal Court to go on with the work posted for the day as that would give an impression to the litigant public that there is no guarantee that the cases will be called at the appointed hour of the day viz., 11 A.M. and it would create a very unhappy or embrassing situation for the Presiding Officer, in the absence of the parties; for he cannot proceed with the day’s work, sitting all by himself in the Court-hall. Therefore, I am unable to agree with the learned Advocate for the appellant-complainant that the Magistrate should have waited till 11-30A.M., or at least for some reasonable time before he exercised the discretion under section 247, Criminal Procedure Code to acquit the accused. In support of this contention, he relied upon a decision of a single Judge of this Court in Public Prosecutor v. T.S. Prasad2. In support of this contention, he relied upon a decision of a single Judge of this Court in Public Prosecutor v. T.S. Prasad2. Sanjeeva Row Nayudu, J., observed: " In all cases, where the complainant appears in the Court on the day of the hearing, this section does not apply at all. It is only when the complainant does not appear at all during the Court hours, on the day of hearing, that the Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused. The section does not justify the acquittal of an accused merely because the complainant happens to be absent when the case is called. Such absence may, in most cases, be due to justifiable cause. Having come to Court, the complainant might have gone to take a cup of coffee or to answer the call of nature or to take his meal. Such temporary absence from Court after the complainant had appeared gives no jurisdiction for the Magistrate to take action under section 247, Criminal Procedure Code." It should be borne in mind that in the above case there was only a temporary absence of the complainant and he was present in the Court except for a short while when he went for his lunch. In that case, the Assistant Inspector of Labour, who happened to be the complainant, was in fact present in the Court on the day of the hearing and had given reasons for his temporary absence as he went for his lunch after attending the Court. Therefore the observations of Sanjeeva Row Nayudu, J., cannot help the appellant in this case. A Division Bench of the Madras High Court consisting of Devadoss and Waller, JJ., dealing with the scope of section 247, Criminal Procedure Code in, Nonkya v. M. Jagannatha1, held: "There is nothing in the section which would justify the construction that the words ‘upon any day appointed for the appearance of the accused, etc., mean any time before the close of the working day. The object of section 247 is to prevent the complainant from being dilatory in the prosecution of the case and if he does not care to be present when the case is called on, the accused is entitle d to an acquittal unless the Magistrate chooses for reasons he thinks proper to adjourn the case. The object of section 247 is to prevent the complainant from being dilatory in the prosecution of the case and if he does not care to be present when the case is called on, the accused is entitle d to an acquittal unless the Magistrate chooses for reasons he thinks proper to adjourn the case. The presence of the complainant’s vakil alone is not sufficient compliance with the require merits of section 247. A complainant cannot be represented by a pleader in order to take away the jurisdiction of the Magistrate to proceed under section 247. The absence of the complainant at the time when his case is taken up for hearing is sufficient to justify the Magistrate in dealing with the case under section 247. and acquit the accused and the Court is not bound to wait till the close of the day to see, before proceeding under sect on 247, whether the complainant appears." This ruling has been subsequently followed by the Madras High Court in Natesa Naicker v. Mari Gramani2Yahya Ali, J., held that acquittal is obligatory under section 247, Criminal Procedure Code, unless the hearing is adjourned. It was further held that- ". . . . . . . . . when in a summons case the complainant does not appear, it is imperative on the part of the Magistrate to acquit the accused, unless there is a proper reason for adjourning the hearing of the case........Where, therefore, an order has been passed in conformity with statutory duty, it must be held to be a proper and correct order, and there car. be no question of revising such an order merely because it would cause some hardship to the party." This Court in Lakshmamma v. Venkataswami Reddy3, dealing with the scope of section 247, Criminal Procedure Code, observed: Moreover it is not her case that there were no buses available for her to reach the Court-house on that day. She merely says that she missed the bus which would have taken her to the Court in time. She did not attempt to go to the Court-house by the subsequent bus on that day as she would have done if she was really anxious to prosecute the case. In the circumstances I do not consider this is a fit case to interfere with the acquittal. She did not attempt to go to the Court-house by the subsequent bus on that day as she would have done if she was really anxious to prosecute the case. In the circumstances I do not consider this is a fit case to interfere with the acquittal. " It was further held that "the explanation of the complainant was unconvincing. Even though there was a right of appeal under section 417, Criminal Procedure Code, to a complainant, against an order of acquittal and not a revision, the facts of the instant case do not warrant interference against an order of acquittal." Therefore whether this discretion has been exercised properly or not depends upon the facts of each case. It should be borne in mind that the section is mandatory and that the Magistrate has to acquit the accused if the complainant does not appear unless the Magistrate thinks it proper to adjourn the hearing of the case to some other date. The working hours of the Court are from 11 A.M. to 5 P.M. and if the argument of Mr. Bheema Raju is to hold good, it would mean that the Magistrate should wait till 5 p.m. before invoking the provisions of section 247, Criminal Procedure Code. There is nothing in the section which would justify or warrant such an interpretation of the section I am not satisfied in this case with the reasons given by the appellant, as it would appear that the appellant had even engaged an Advocate and if the Advocate or his junior had come to the Court in time and made a representation, that would have at least been a ground here for pleading that the Magistrate has not exercised his discretion in a reasonable manner. Unless there are reasonable grounds and it is shown that the Magistrate has not acted judicially the acquittal of the accused under section 247, Criminal Procedure Code, cannot be challenged. From the language of the section it is apparent that in a summons case where the complainant does not appear it is obligatory on the part of the Magistrate to acquit the accused unless there is a proper reason to adjourn the hearing of the case. The Magistrate was not aware of the reasons now put forward by the complainant and therefore the Magistrate has exercised his discretion properly. The Magistrate was not aware of the reasons now put forward by the complainant and therefore the Magistrate has exercised his discretion properly. In the result the order of the Magistrate is confirmed and the appeal dismissed. G.S.M. ----- Appeal dismissed.