Full Judgment
1. This is a reference by the Additional District Magistrate of Dacca, under Section 438, Criminal Procedure Cede. The petitioner Etim Haji lodged a complaint against one Hamid and others under Sections 426 and 447, Indian Penal Code. After a preliminary enquiry an order was passed on 10th February 1916 summoning the accused Hamid for trial of an offence under Section 426, Indian Penal Code. The case was fixed to be heard on the 7th March 1916 in the Court of Mr. P. M. Sen, Deputy Magistrate, Dacca. On that date, both the complainant and the accused appeared before Mr. Sen with their respective witnesses. The Deputy Magistrate thereafter recorded the following order in the order sheet: 'Five witnesses for prosecution and five witnesses for defence. To Sadar Bench for favour of disposal.' The case was taken up later on in the day by Mr. R. N. Das and Mr. K. Azimullah, who formed the Bench of Magistrates to whom the case had been transferred. The complainant and his muktears were called for several times, but were not found. The Magistrates accordingly recorded the following order: 'accused present; complainant absent; accused acquitted under Section 247, Criminal Procedure Code.' Shortly after this the complainant, it is said, appeared before the Magistrates and prayed that the case might be revived, as he was not aware of the order of transfer and was waiting with his witnesses in the Court of Mr. Sen in the belief that his case would be tried there. The Magistrates stated that as an order under Section 247 had already been recorded, the case could not be revived by them. The complainant then applied to the District Magistrate, who has referred the matter to this Court with the recommendation that the case should be revived. We are of opinion that his recommendation should be accepted. We agree with him that Section 247 has not been rightly applied to this case, as the complainant was present in Court with his witnesses on the date fixed for trial and was not aware that the case had been transferred to other Magistrates. This view is supported by the decision in Romanath Bal v. Behari Bag Bagai 13 C. L.R. 303. In fact in the case before us, the order of transfer showed on the face of it that the complainant was present with his witnesses. This was possibly overlooked by the Magistrates, when they made the order under Section 247. We, accordingly, set aside the order under Section 247 and direct that the trial do proceed in accordance with law.