John Beaumont, Kt., C.J.
1. In this case the learned Presidency Magistrate, Third Court, was trying two complaints arising out of the same transaction, one of them being under Section 102 of the Presidency-towns Insolvency Act, for which the punishment is less than six months and, therefore, the case is a summons case, which should be tried normally under Chapter XX of the Criminal Procedure Code. The other charge is under Section 420 of the Indian Penal Code, and that is a warrant case triable under Chapter XXI. The learned Magistrate was trying the two offences together, and it was decided in Rajnarain Koonwar v. Lala Tamoli Rout 1884 I.L.R. 11 Cal. 91 that in such an event it is the warrant procedure which must be followed. That is clearly right; the procedure to be followed must be that laid down for the more serious offence.
2. The case had been, adjourned to a particular date, and on that date the complainant was absent, and the learned Magistrate passed an order, ' Complainant absent. Accused discharged.' That is in form an order under Section 259 of the Criminal Procedure Code, relating to warrant cases, and the order does not prevent the lodging of a fresh complaint in respect of the same matter. But if the case was being tried as a summons case, the learned Magistrate had no jurisdiction to make any other order than that of acquittal or adjournment under Section 247 of the Criminal Procedure Code.
3. The complainant subsequently lodged a fresh complaint in respect of the same matter, and the learned Magistrate issued a summons under Section 420 of the Indian Penal Code, but not under Section 102 of the Presidency-towns Insolvency Act, presumably because he considered that his order of discharge on the previous complaint operated as an acquittal in respect of the summons case. In our opinion, it is permissible in a case of this sort, where there are two charges arising out of the same transaction, one triable as a summons case and the other as a warrant case, for the learned Magistrate to try them together; but if he does so, he must follow the procedure laid down for warrant cases, and he cannot, whilst proceeding with the two cases together, treat them separately. If he wishes to do that, he must deal with them separately from the inception. As he was dealing with the two cases together under one form of procedure, we think that the order he made operated simply as an order of discharge under Section 259 of the Criminal Procedure Code, and that we cannot construe it in one sense in respect of the warrant case and in another sense in respect of the summons case. The point is covered exactly by a decision of the Madras High Court in Raghanalu Naicker v. Singaram 1918 I.L.R. 41 Mad. 727 and we think that that case should be followed.
4. We, therefore, direct the learned Magistrate to issue summons in respect of the offence under Section 102 of the Presidency-towns Insolvency Act as well as under Section 420 of the Indian Penal Code.