P THIMMAPPA Vs. P CHINNA THIMMAPPA

JUDGEMENT

(1.) This criminal Appeal, which is preferred by the complainant in CC. 375/65 on the file of the judicial Second Class Magistrate, Uravaents (accused) under Sec. 247, Cr. P. C., has been referred to the Bench for a decision by our learned brother Venkatesam, J, questions involved viz., whether the word `day in Section 247 Criminal P. C. 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 P. C., 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 328 and 352 I. P. C. After the examination of the complainant and his witness 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 Sec. 247, Criminal P. C. 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 bust 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 P. C., means the whole working day of the Court and not 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, he relied upon a decision of this Court in Public Prosecutor v. T. S. Prasad, AIR 1960 Andh Pra 193, wherein Sanjeeva Rao Naidu, J., as he then was, observed as follows;