1. This is an application for revision of an order passed by a Magistrate having appellate powers upholding the conviction and sentence of 2 months' rigorous imprisonment passed by a Magistrate of Second Class in a case in which the applicants were prosecuted for an offence under Section 297, Penal Code. The only ground that has been argued in revision is that the applicants having been once acquitted by the trying Magistrate, the latter was incompetent to try and convict the applicants on a fresh complaint. Stated as a proposition of law, this contention appears to be sound but taken in relation to the facts of the case, I have no hesitation in rejecting it.
2. It appears that one Razaq Husain filed a complaint against the applicants, Gulab Shah Ali Bux and Inayat Ullah under Section 297, Penal Code, alleging that they had dug up a certain grave-yard situate in Shahgunj and were guilty of other acts punishable under Section 297, Penal Code. The complaint was filed in the Court of the City Magistrate of Agra who transferred it to the Court of the Honorary Magistrate with 2nd Class powers. The latter proceeded to record evidence for the prosecution and framed a charge. It does not appear whether any evidence for the defence was recorded. The Magistrate discovered some time after the charge was framed that the complainant had not been examined under Section 200, Criminal P.C., when he presented his complaint. The Magistrate considered this to be a serious flaw in the proceedings. He proceeded to remedy this defect by recording an order 'dismissing the complaint' and directing the complainant to file a fresh complaint which was done. The Magistrate recorded the statement of the complainant and re-examined all the witnesses who had been previously examined, framed a charge and directed the accused to enter on their defence. The latter produced their witnesses and were eventually convicted. It is argued that the Magistrate's order 'dismissing the complaint' amounts to an acquittal and subsequent proceedings which followed on a fresh complaint were illegal, having regard to the provisions of Section 403, Criminal P.C. The judgment of the Magistrate, hearing the appeal does not show that this contention was put forward before him. It is however no bar to the plea being taken in revision. If it is well founded, I am clearly of opinion that it has no force.
3. Section 403, Criminal P.C., provides that:
A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence....
4. The question is whether the applicants were acquitted. In other words whether the order of the Magistrate dismissing the complaint in the circumstances already stated operates as an order of acquittal. It is perfectly clear that the Magistrate did not intend to acquit the accused. It is equally clear that he was not prepared to find that the case of the prosecution had not been made out. He was obsessed by the idea that the whole proceedings be-fore him were vitiated by the fact that the complainant had not been examined under Section 200, Criminal P.C. To remedy that defect he devised a somewhat disingenuous course of 'dismissing the complaint' without meaning to decide the case finally and acquitting the accused. The expression 'dismiss a complaint' has been used in Section 203, Criminal P.C., which refers to a stage before process is issued to the accused. The stage at which the Magistrate dismissed the complaint in this case did not warrant an order dismissing the complaint with the fullest intention of continuing the proceedings on a fresh complaint being filed. The trial of the case was one under Ch. 21 according to the procedure prescribed for warrant cases. After the trial commenced there could be either a discharge under Section 253, if the Magistrate found that 'no case against the accused has been made out which, if un-rebutted, would warrant his conviction' or in an acquittal under Section 258 if 'the Magistrate finds the accused not guilty.' It will be seen that after the trial had commenced, the termination of the case must have a reference to its merits. The procedure does not warrant the dismissal of the complaint, if the prosecution was started on a private complaint. The order of the Magistrate dismissing the complaint in this case was one which he could not pass under any rule of law at the stage at which it was passed. The so-called order of dismissal does not, in my opinion, amount to an acquittal within the meaning of Section 403, Criminal P.C. That order was wholly ineffective for terminating the trial which had taken place up to the time it was passed. The mere fact that the Magistrate recorded the whole of the evidence for the prosecution a second time cannot affect the legality of the trial. The conviction of the applicants based on the evidence so recorded cannot be considered to be bad in law. In this view the conviction and sentence which have not been questioned on any other ground must stand and this application for revision is dismissed.