CHINNAM RAMNATH PATRO Vs. CHANDRAMMA GUNI

JUDGEMENT

(1.) THIS is an appeal by the complainant under Section 417 (3) of the Code of criminal Procedure against an order dated 3-2-62 passed by the Sub-divisional magistrate Bhanjanagar, in complaint case No. 31/61 acquitting the accused-respondents under Section 247, Cri. P. C.

(2.) THE appellant filed a complaint alleging criminal trespass on his land against the accused persons, in the Court of the Sub-divisional Magistrate on 21-4-1961 which was sent to the local Revenue Inspector for enquiry and report. After several adjournments, the report of the Revenue Inspector reached the Court on 4-121961 when cognizance was taken and the accused persons were summoned under section 447, I. P. C. to appear on 4-1-1962. On that day the accused persons did not appear, though the complainant was present. So the accused persons were again summoned to appear on 3-2-1962. On this date, the complainant was present in the Court from early hours, but being suddenly called by nature he left the Court premises for some time and on coming back he learnt that an order acquitting the accused persons had been passed under Section 247, Cri. P. C. on account of his non-appearance at the time when the case was called for hearing. Immediately thereafter at about 12. 30 p. m. he filed an application before the trying Magistrate for restoration of the case stating the reasons for his temporary absence from the Court premises. The learned Magistrate, however, rejected the petition as he was not satisfied with the grounds advanced by the complainant and also on the ground that he had no power to set aside an order of acquittal already passed. It is against this order of the learned Magistrate the complainant has preferred the present appeal.

(3.) THAT the complainant was absent when the case was called out is admitted and it also appears from the order-sheet that 3-2-62 was fixed for the appearance of the accused persons. It is necessary at this stage to examine the provisions of section 247, Cri. P. C. before we proceed to the merits of the case. Section 247 runs as follows: