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3. The complainant felt aggrieved against this order of dismissal of his complaint and he went up in revision under Section 435, Cr. P, Code before the District Magistrate, Rae Bareli. In his grounds of revision the complainant contended that he and his counsel were present in the court on the date fixed, but as the complainant suffered from hernia, ho suddenly got an attack outside the court and so when the case was called in the beginning of the day, the complainant and his counsel could not attend the court.

7. Three questions, therefore, emerge for decision in this case. The first question is, whether the order of dismissal passed by the Sub-divisional Magistrate is a proper and legal order. The second question is, whether the Additional District Magistrate was competent to entertain this revision and make this reference. The third and the last question is, whether it is a fit case in which I should exercise my inherent powers under Section 561-A Cr. P. Code.

8. I proceed with the first question. The counsel for the opposite parties have not contended that the complainant was not present on the day before the Sub-Divisional Magistrate when his complaint was dismissed. They have also not Challenged the allegation that he suddenly suffered from an attack of hernia and so was unable to appear before the Court when the case was called upon. This is again not challenged that the case was called in the early hours of the day and later the complainant appeared before the Court and gave diet money to the witnesses who were summoned for that date. It is in the background of these facts that I have to assess whether the order passed by the Sub-Divisional Magistrate was illegal or not.

The learned Judge admitted that this interpretation can occasionally mean a great hardship to the complainant, but he came to the conclusion that it the complainant wants to he absent for a moment he should take the permission of the Court. It rather seems extraordinary to me that the complainant is reduced to the position of a student in a class. He wants to go out on an urgent call of nature or otherwise and be has to seek the master's permission to go out. Again, there may by cases where the complainant could not even seek this permission. As the facts of this case disclose the complainant suffered from a sudden attack of hernia and, therefore, it was not possible for him to go to the Magistrate and seek his permission to be away for some time.

It is not necessary to multiply these cases, for their numbers are legion. As observed by me above some of the Magistrates utilize the provision;, of Section 247, Cr. P. C., as an axe to guillotine the complaint cases pending before them. In this case the facts clearly establish that there was no default committed by the complainant when his case was dismissed. He had brought his witnesses who were present and he himself was present but only on account of an attack of hernia he could not appear before the Court when the case was called.