In this revision petition a very interesting question is raised. The complainant died pending the enquiry into the case. The case before the Magistrate was a summons case, and the contention of Mr. Kameswara Rao is when the Magistrate was told that the complainant was dead he should have dismissed the complaint under Sect. 247 of the Code of Criminal Procedure for the nonappearance of the complainant. The Magistrate adjourned the case in order to enable the complainant's son to come on the record and the learned Public Prosecutor contends the Magistrate's action is not ultra vires as the section deals with complainants who are alive and not with complainants who are dead. The relevant portion of Sect. 247 is if the “Complainant is absent, 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.” The Magistrate adjourned the case in order to unable the complainant to appear and not for any other reason. If the complainant is dead he could not appear before the Magistrate and therefore the clause beginning with the words “unless for some reason he thinks &c.,” cannot apply to the case of the complainant who is dead. In this case the complainant being dead during the course of the enquiry the Magistrate should have acquitted the accused and should not have proceeded with the enquiry. I may in this connection refer to Purna Chandra Moulik v. Dengar Chandra Pal(1). I therefore set aside the conviction and direct the fine if paid to be refunded to the accused.
K. V. S.Conviction set aside.