T.N.R. Tirumalpad, J.C.
1. The petitioner was convicted by the first class Magistrate Udaipur, under Sub-section 323/342, I.P.C. and sentenced to undergo six months R.I. under each section, the sentences to run concurrently. In appeal the convictions were confirmed but the sentences were reduced to two months R.I. under each count. Now the petitioner has come up in revision.
2. The case against the petitioner was that on 5-7-59, he assaulted one Kharenessa (P. W. 1) of his village with his fist and caused simple injuries to her and then tied her hinds and feet with a rope and threw her into a paddy field from where she was subsequently rescued by her brother (P. W. 3). On these allegations, the petitioner was charged under Section 323/342,1. P. C. The defence of the petitioner was that on the date of the occurrence two goats of P. W. 2 had strayed into his field and damaged his crops and when he caught the goats and was taking them to be impounded, P. W. 1 .caught hold of the none with which the goats were tied and so he pushed her with the result that she fell down in the field. He denied causing injuries or tying her hands and feet with rope. Both the lower Courts were however satisfied with the evidence of the 5 P. Ws. who were examined and of the Court witness the Doctor who deposed about the injuries that the petitioner accused the injuries and tied her hands and feet with rope and left her in the field. I see no reason to interfere with the said concurrent findings of the lower Courts on this point. The evidence against the petitioner was over-whelming and the lower Courts have come to the correct conclusion (3) But it was argued for the petitioner the his prosecution was barred under Section 403 Cri. P. C. It would appear that a complaint regarding this occurrence was first filed before the S.D.M. on 9-7-59 by P. W. 3, the brother C.P.W. 1 and it was registered as Criminal Case No. 291 of 1959. The S.D.M. examined the complainant under Section 200 and issued nonbailable warrant of arrest against the petitioner to take trial under Sections 354/342/323, I.P.C. As it offence under Section 354 was triable as a warrant case, warrant procedure was adopted in the case and it stood posted to 7-9-59. On that date, the complainant did not appear while the petitioner was present and the lawyer of the complainant informed the Magistrate that he had no instructions. Thereupon the Magistrate passed the order that the complaint appeared to be groundless and there was no need to drag on the case further causing unnecessary harassment to the accused and hence the case was dismissed and the accused discharged under Section 253, Cri. P. C. Actually, there was no warrant for the Magistrate's remarks that the complaint was groundless, as no evidence in the case had been taken before him and as he had summoned the accused under Section 204, Cri. P. C. after being satisfied that there were grounds for proceeding. Perhaps, the Magistrate acted under Section 253(2), Cri. P. C. instead of under Section 259, Cri. P. C. because the offence under Section 354, I.P.C. was a nonbailable one and a cognizable one and hence the accused could not toe discharged under Section 259, Cri. P. C. The very next day after the discharge of the accused, P. W. 1 filed the present complaint on the same facts under Section 323/342, I.P.C. and the Magistrate entertained the complaint and it is in that case that the petitioner was convicted and sentenced as stated above.
4. What was argued for the petitioner was that the original complaint was filed by P. W. 3 only under Sections 323 and 342, I.P.C. and hence the case should have been dealt with as a summons case, but that the Magistrate wrongly included an offence under Section 354, I.P.C. while issuing summons to the accused and adopted warrant procedure for the trial and that therefore the discharge of the accused though said to have been made under Section 253, Cri. P. C. should be treated as an acquittal of the accused under Section 247, Cri. P. C. and hence a second complaint on the same facts was barred under Section 403, Cri. P. C. It was also contended that even if the adoption of the warrant procedure for the offence1 under Section 354, I.P.C. was correct, the offences under Sections 323 and 342, I.P.C. being triable as a summons case, the discharge of the accused at least in respect of the offences under the said sections must be treated as amounting to acquittal of the accused under Section 247, Cri. P. C. and hence a second complaint in respect of the offences under the said sections will be hit by Section 403, Cri. P. C. This argument was also advanced before the Sessions Judge in appeal, but the Sessions Judge rejected the argument holding that as the offence under Section 354 I.P.C. was triable under warrant procedure, and as the offences under Sections 323 and 342, I. P. C, which could have been tried under summons procedure separately, were included in the same trial, warrant procedure had to be adopted for the entire trial and when once warrant procedure was thus adopted. any discharge of the accused under Section 253, Cri. P. C. will not prevent a second trial for the same offences and that Section 403 will not be a bar.
5. I entirely agree with the Sessions Judge. It is true that the original complaint filed by P. W. 3 was under Sections 323 and 342, I.P.C. But after taken the sworn statement of P W. 3, in which also I find he referred only to the offences under Sections 323 and 342, I.P.C. the Magistrate decided to issue warrant to the accused to take his trial under Section 354/323/342. I.P.C. and he adopted warrant procedure as the offence under Section 354, I.P.C. was triable under warrant procedure. We are not now concerned with the question how far the Magistrate was justified. in including the offence under Section 354, I.P.C. Whether it was right or wrong he had done it. The petitioner could at that stage have pointed out to the Magistrate that there was no case under Section 354, I.P.C. and that the Magistrate should adopt summons procedure as the offences mentioned in the complaint and in the sworn statement included only those under Sections 323 and 342, I.P.C. The order sheet in the said case shows that the petitioner did not do so and acquiesced in the Magistrate adopting warrant procedure. At least on 7-9-59, when the Magistrate purported to discharge him under Section 253, the petitioner could have pointed out to the Magistrate that it was really a summons case, that Section 354 should be deleted in the proceeding and that he should be acquitted under Section 247, Cri. P. C. That also he did not do. He cannot, therefore, be heard to say now that his discharge under Section 253, Cri. P. C. amounted to an acquittal under Section 247, Cri. P. C.
6. When warrant procedure was adopted in respect of one of the offences the same procedure has to be adopted in respect of She trial of other offences for which if there was a separate trial, summons procedure could have been adopted. This was conceded by the petitioner's counsel. Thus warrant procedure was adopted in respect of all the offences m the first trial. Hence the discharge under Section 253 cannot be treated as acquittal under Section 247, Cri. P. C. in respect of the offences which could have been separately tried under summons procedure. The explanation to Section 403. Cri. P C. makes it clear that the discharge of an accused is not an acquittal for the purpose of the section. Thus the discharge of the petitioner under Section 253. Cri. P. C.did not amount to his acquittal under Sections 323 and 342, I.P.C. and_ hence Section 403 cannot be a bar to a further trial. The same view has been taken in the decisions Raghavalu Naicker v. Singaram AIR 1918 Mad 371, Kanji Vijpal v. Pandurang Keshav AIR 1940 Bom 413 and Swaroop Singh v. Emperor AIR 1948 All 135. I express my respectful agreement with the said decisions.
7. There are thus no merits in this revision petition and it is accordingly dismissed. Petitioner will surrender to Ws bail.