R.L. Narasimham, C.J.
1. During the hearing of this revision petition the question arose about the legality and propriety of the order D/- 14-5-1962 passed by the Sub-divisional Magistrate of Karanjia in Complaint Case No. 84 of 1961. Mr S.C. Mohapatra who appeared for the accused persons in that case accepted notice on behalf of those persons, calling upon them to show cause why the order dated 14-5-1962 may not be set aside and he was permitted to argue this point both on facts and on law.
2. The material facts connected with this revision petition are as follows: One Donga Rensa Ho (P.W. 1) filed a complaint before the learned Magistrate on 4-9-61 against the two accused persons (petitioners before me) alleging that they caused him injuries. The learned Sub-divisional Magistrate on the same day, after examining the complainant on- solemn affirmation, took cognizance of the offence and summoned the accused persons under Section 323 I.P.C. This was registered as complaint case No. 84 of 1961. On 21-7-1961 the same complainant had lodged information at Parwan P.S. against the two petitioners alleging that they had caused him injuries. Apparently, this F. I. R. was actually under investigation when the complainant filed the regular complaint before, the said Magistrate on 4-9-1961. In. fact, in his statement made on solemn affirmation he stated before the Magistrate that he informed this fact at the Police Station. The learned Sub-divisional Magistrate should therefore have waited for the results of the police investigation before hastily summoning the accused persons under Section 323 I.P.C.
The police case, after due investigation, ended in the submission of charge-sheet against the two petitioners, under Section 324 I.P.C. That charge-sheet was placed before the same Sub-divisional Magistrate on 16-8-61. Cognizance was taken in due course on the charge-sheet and the Police Case continued in its usual course (numbered as G. R. Case No. 118/61). On 14-5-1962 the complainant himself filed a petition before the learned Magistrate saying that the police case had already ended in submission of charge-sheet and that as that case was pending before the Magistrate he wished to withdraw the complaint case. The use of the expression 'withdraw' was some what unhappy. The learned Magistrate however without carefully considering the effect of withdrawal of the complaint case passed an order on 14-5-62 to the following effect.
'Hence this case is withdrawn and the accused Raiman Ho and Bijoy Ho are acquitted under Section 247 Cr. P. C.'
Here Section 247 is obviously a mistake for Section 248 Cr. P. C, Having thus disposed of the complaint case the learned Magistrate: proceeded with the Police case and convicted the two petitioners under Section 323 1. P. C. and sentenced them to undergo rigorous imprisonment for one month each.
3. Mr. Mohapatra however contended that in view of the acquittal of the accused persons in the complaint case, the Magistrate had no jurisdiction to convict them In the G. R. Case on the same facts and that Section 403 Cr. P. C. would operate as a bar.
4. I have no doubt that when the learned Magistrate passed orders on 14-5-1962 in the complaint case all that he meant was that the Police case alone should be continued and that the complaint case should not be dealt with separately. For that purpose be should merely have written in the order-sheet that in view of the G. R. Case this complaint was merged with the former and will not be dealt with separately. Instead of saying like that he wrote an order allowing the complaint case to be withdrawn and acquitting the accused and thereby creating difficulties for himself. In my opinion, therefore, the I order dated 14-5-1962 in complaint case No. 84 of 1961 Is neither proper nor legal, in view of the reasons given by the Magistrate himself while passing that order. I would therefore, in exercise of my revisional jurisdiction under Section 439 Cr. P. C. set aside the order of the Magistrate which reads as follows:
'Hence this case is withdrawn and the accused are acquitted under Section 247 Cr. P. C.'
and substitute the following words:
'Hence this case is merged with G. R. case No. 113 of 1961 which alone will be proceeded with hereafter.'
5. In view of this order, the principle of autre fois acquit under Section 403 Cr. P. C. has no application. But as the trial has already taken place and ended in conviction when the bar under Section 403 Cr. P. C. was actually subsisting I think the correct procedure now would be to direct retrial of the G. R. Case No. 118 of 1961.
6. For these reasons the conviction and sentence passed by the Magistrate in G. R. Case No. 118 of 1961 are set aside, and the learned Magistrate, or his successor In office is directed to re-try the case according to law, and then dispose of the same. This order necessarily involves the setting aside of the order of the teamed Judge In appeal (namely in Criminal No. 94-M of 1962.