J.M. Sheth, J.
1. This is a Reference made by the learned Sessions Judge, Kutch at Bhuj recommending that the order passed by the learned Judicial' Magistrate, First Class, Mandvi in Criminal Case No. 979 of 1972, convicting the petitioner-accused for the offence under Section 131 read with Section 33(1)(v)(i) of the Bombay Police Act and sentencing him to pay a fine of Rs. 10/- and in default to undergo two days' simple imprisonment, be set aside, as it is illegal, the reason being that a complaint filed against him in respect of that very offence in that very Court by another policeman named Dalabhai was dismissed .and the petitioner-accused was acquitted under Section 247 of the Criminal Procedure Code on 7-9-1972 in that Criirunal Case No. 1015 of 1972. .
2, This recommendation haB been made by him on the basis of the provisions of Section 403 of the Criminal Procedure Code. Sub-section (1) of Section 403 of the Criminal Procedure Code reads as under:-
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, nor on the same facts for any other offence for which a jdifTerent charge from the one made against Mm might have been made under Section 236 or for which he might have been convicted under Section 237.The explanation Riven to section reads:- 'The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section.
Section 247 of the Criminal Procedure Code under which the petitioner-accused came to be acquitted in the previous proceeding *does not fall within the provisions referred to in the said explanation.
3. In the instant case, two complaints were filed against the petitioner-accused for the aforesaid offence alleged to have been committed by him on 3-8-11972 at 4-25 p.m. One complaint was filed by complainant tavji and the other by Dalabhai, Both these policemen entered Jthe shop of the petitioner at 4-25 P, M. on 3-8-1972 and each of them filed a separate complaint in respect of that very offence . The complaint filed by Dalabhai was heard first. The plea of the accused was recorded and he pleaded not fiuilty. On the day on whicjfci the evidence was to be recorded, the complainant was absent and so the order was passed under Section 247 of the Criminal Procedure Code by the Judicial Magistrate, First Class, Mandvi and the said order of acquittal was passed on 7-9-1972., Therer after the second complaint filed by Layji In respect of this very offence was taken on the board. The deposition of the complainant was recorded and the order of conviction in question was passed on 18-10-1972. The case in question was a summons case. Chapter XX of the Criminal Procedure Code provides for the prM^dui^ to be followed in trial of aum-mons-cases by Magistrates. Section 242 of the Criminal Procedure Code reads
When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should nptv be, convicted; but it shall not be necessary to frame a formal charge.
This section clearly indicates that in the trial qt summons-cases when the accused appears or is brought before the Court, the particulars of the offence of which he is accused have to be stated to him and his plea is to be recorded. It is not necessary to fratne a formal charge. Section 243 of the Criminal Procedure Code further indicates that if the accused admits that he has .committed the offence and if the does not show sufficient cause why he should not be convicted, the Magistrate may convict him. If he is not so convicted, Section 244, indicates that he has to proceed to hear the complainant and take all such evidence'as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Section 247 of the Criminal Procedure Code which is material for our purpose reads:-
If the summons has been issued on complaint and upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefor* contained acquit the accused, unless for some reason he thinks proper to adiourn the hearing of the case to softie other' day.
4. It is evident that the order that was passed in the previous complaint of acquitting the accused was passed as contemplated bv Section 247 of the Criminal Procedure Code It is therefore evident that it is an order of acquittal passed and such an order will not fall within the explanation tp Section 403 of the' Criminal Procedure Code. In that view of the matter, the Magistrate in view of the provisions of Section 403 of the Criminal Procedure Code was not competent to hear the complaint filed by another police constable and record the order of conviction and- sentence which has been passed by him in Criminal Case No. 979 of 1972. This conclusion. of mine gets support from the decision of e, Division Bench of the Bombay High Court in Shankar Dah tatraya- Vaze v. Pattatraya SadasMv TendUlkar. AIR 1929 Bom 408 - (1930) %l Cri LJ 1000). It is observed therein that under Section 247, it is not: necessary that the summons should bs served on the accused or that he should be present in Court before an order of acquittal can be passed in his favour on account of the absence of the complainant. The word . 'tried' in Section 403 does not necessarily mean tried on merits and such acquittal bars fresh trial. It is observed at pane 409 as under:
It is clear that the previous order of acquittal has remained in force end has not been set aside by any order of a superior Court, The word 'tried' in Section 403 does not necessarily mean tried on merits. The composition of an offence under Section 345. Criminal Procedure Code or a withdrawal of the complaint by the Public Prosecutor under Section 494, Criminal Procedure Code would result in an acquittal of the accused even though the accused is not tried on merits. Such an acquittal would bar th'e trial of the accused on the same facts on a subsequent complaint. Under the explanation to Sectionthe dismissal of a complaint, th stopping of proceedings under Section the discharge of the accused or any entry made upon a charge under Section 273, is .not an acquittal for the purposes of this section.
The composition of an offence under Section 345, the withdrawal under. Seqtion 494 or an acquittal under Section 247, Criminal Procedure Code is not included in the explanation-to Section 403, Criminal Procedure Code. It is urged, however, on behalf of the applicant that though the word 'tried' may not mean trial on the. merits, yet the trial must commence before an order of acquittal is passed, and that unless a summons is served in a summons case against the accused the trial cannot be said to have commenced against the accused. We are of opinion that as soon as a Magistrate takes cognisance of an offence and an order for summons is issued the proceedings have commenced against the accused and under Section 247, it is not neces-iryiitat a summons should be served, or .'Hilt the accused should be present in Court before an order of acquittal might be passed in his favour, on account of the absence of the complainant.
The case which I have to consider stands on a stronger footing than' the aforesaid case which the Division Bench of the Bombay High Court had to consider.
5. In the instant case the particulars of the offence were explained to the accused and his plea was recorded. On the day the evidence was to be recorded, the complainant remained absent and the order of acquittal under Section 247 of the Criminal Procedure Code came to ba passed.
6. In Haveli Ram v. Municipal Corporation, of Delhi AIR 1966 Puni 82 : (1966 Cri LJ 162) a Single Judge of the. Punjab High Court has observed that there are two views with regard to the meaning, and scope of the word 'tried' Sub-section (1) of Section 403 one view that the accused must be preseRt in urt on being summoned before it can be said that the trial has commenced and the other is that once the Court has taken cognisance of a complaint or of a criminal . case and has 'ordered issue of process for the accused to appear, it has taken steps towards the trial and what it has done is proceedings in the nature of a trial. ' The latter view accords more with the explanation to Section 403 of the Code because Were it the intention of the Legislature ta exclude acquittals under, Sections 247 and 248 from the scope of Section 403, it could have specifically provided for it, as is done in the explanation in the case of stopping of proceedings under Section 249' or the discharge of the accused or an en-try made upon a discharge under Section 273.
The Bombay High Court has taken th same view and. j. am bpund by that ded sion also. The said decision has been-' given prior to the date of the bifurcation, of the Bombay State. It is thus eVJdeat that the trial in Criminal Case No. 978 of 1972 was barred in view of the provision of Section 403 of the Criminal Procedure' Code.
7. The order of conviction and sentence recorded agairist the petitioner-accused, therefore, cannot be sustained in law. The Reference is therefore accepted and the order of conviction and sentence recorded against original accused Kashigar Ratangar in Criminal Case No. 979 of 1972, is set aside. Fine if paid by him is ordered to be refunded to him. Rule is made absolute.