ORDER A.N. Bhandari, C.J.
1. This petition under Section 561-A of the Code of Criminal procedure must be dismissed on the short ground that the learned Magistrate was justified in dismissing the complaint under Section 247 of the Code of Criminal procedure.
2. The facts of the case are simple and not in dispute. Daulat Ram petitioner presented a complaint in the Court of a Magistrate of the 2nd Class against four persons under Sections 417, 506 and 454 of the Penal Code. The learned Magistrate took preliminary evidence, summoned the accused persons recorded the statements of witnesses framed a charge under Section 448 of the penal Code against Bam Kishan accused, ordered the discharge of the remaining three accused Persons and forwarded the case to the Additional District Magistrate for transferring the case to a Court of competent jurisdiction.
On 22-4-1957 the Additional District Magistrate returned the records to the trial Court for dealing with the case. On 9-5-1957 the trial court issued a notice to the complainant to appear before him on 23-5-1957. He failed to appear on that date and the Court accordingly directed that the complainant and his counsel should be asked to appear in Court on 10-6-1957. On this latter date the complainant did not appear and notices were issued to him to appear on 1-7-1957. On 1-7-1957 the complainant was not present in Court either in person or through counsel and the trial Court accordingly passed an order directing that the file be consigned to the Record Boom. The complainant is dissatisfied with the order and has come to this Court under Section 561-A of the Code of Criminal Procedure.
3. Section 247 of the Code of Criminal Procedure is in the following terms:
"247. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.
Provided that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance, ana proceed with the case."
Section 259 of the Code Of Criminal Procedure runs as follows :
"259. When the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused."
The learned counsel for the complainant contends that the proceedings in this ease Were instituted upon complaint that it was tried as a warrant case, that charges were framed against the accused and that it was pot within the competence of the trial Court, in view of the provisions of Section 259 of the Code of Criminal Procedure, to discharge the accused. It was his duty to proceed with the case on merits and to decide the case in accordance with law.
4. It is true that the present case was tried as a warrant case for offences under Sections 417, 506 & 454 of the penal Code which are punishable with imprisonment for a term exceeding one year. A charge however, was framed only under Section 448, Penal Code. A case under Section 448 is clearly a summons case for an offence under Section 448 is punishable with imprisonment for a period of one year. It may be that this case was tried originally as a warrant case but the fact remains that in substance and effect it is a summons case and cannot be dignified to the status of a warrant case.
This case is governed by the provisions of Section 247 of the Code of Criminal Procedure and not by the provisions of Section 259, and it seems to me therefore that when the complainant failed to appear in the Court the Magistrate was under an obligation to dismiss the complaint unless he was of the opinion that the case should be adjourned to another date. A person charged with a summons case offence is entitled to be acquitted if the complainant is absent, Venkatarama Aiyar v. Sundaram Pillai, AIR 1923 Mad 439 (A), and he cannot be deprived of this right by reason only of the fact that the Magistrate has chosen to adopt a particular procedure.
5. For these reasons I am of the opinion that this petition moist be dismissed. I would order accordingly.