P. THIMMAPPA Vs. P. CHINNA THIMMAPPA AND OTHERS

JUDGEMENT

(1.) This Criminal Appeal, which is preferred by the complainant in C.C. 375/65 on the file of the Judicial Second Class Magistrate, Uravakonda, against the acquittal of the respondents (accused) under Section 247, Criminal Procedure Code, has been referred to the Bench for a decision by our learned brother Venkatesam, J. having regard to the "importance" of the questions involved viz., whether the word 'day' in Section 247 Criminal Procedure Code, means the whole working day of the Court or only the time when the case is called for hearing and whether even if the Magistrate has jurisdiction to set aside the acquittal made by him under Section 247 Criminal Procedure Code, the High Court is not entitled to go into the sufficiency of the cause of the absence of the complainant and set aside the acquittal if satisfied about it.

(2.) The appellant filed C. C. 375/65 against the respondents under Sections 323 and 352 Indian Penal Code. After the examination of the complainant and his witnesses was concluded, the case was adjourned to 25/9/65 to enable the respondents to examine the Town Inspector as a defence witness on their behalf. When the case was called on for hearing that day, neither the complainant nor his pleader was present with the result that the learned Magistrate passed an order acquitting the respondents under Section 247, Criminal Procedure Code in the following terms:

(3.) The complainant swore to an affidavit in this case stating that he did attend the Court on 25-9-65 but could reach it only at 11-45 A. M. on account of late running of the bus that day and that he was informed by his advocate, who too happened to attend the Court late that day, that his case was called and the accused were acquitted at 11-40 A. M. The learned counsel for the appellant argued that the word 'day' occurring in Section 247, Criminal Procedure Code, means the whole working day of the Court and merely the point of time when the case is called on for hearing and that the Court below should therefore have waited till 5-00 P. M., when alone the working hours of the Court came to a close, before exercising its jurisdiction to acquit the accused under Section 247, Criminal Procedure Code. In support of this contention, he relied upon a decision of this Court in Public Prosecutor v. T. S. Prasad, A.I.R. 1960 Andhra Pradesh 193, wherein Sanjeeva Row Naidu, J., as he then was, observed as follows: