L.N. Chhangani, J.
1. This is a reference by the Additional Sessions Judge, Sikar, recommending that the order of the Sub-Divisional Magistrate', Sikar, dated 29-12-1961 stopping proceedings in criminal original case No. 618 of 1961, and the subsequent order dated 2-7-1963 in criminal original case No. 121 of 1962 overruling the accussed-petitioner's plea that the subsequent complaint was barred, be set aside.
2. The material facts giving rise to the reference may bet stated as follows:
On 28th of February, 1961, the Food Inspector Sikar purchased some sample of ghee from the respondent Radha Kishan of Khatu, and sent the same to the Public Analyst at Jaipur. The, Public Analyst found that the sample of ghee was adulterated with foreign fat and did not conform to the prescribed standard of purity. A complaint under Section 7 of the Prevention of Food Adulteration Act, 1954, was filed against the accused before the Magistrate on 24-10-1961. The Magistrate issifsd summons to enforce the appearance of the accused but the summons was received back with the report that there was no person of the name of the accused in the village. The Magistrate thereupon passed an order on 29-12-1961 consigning the case to the record until further orders. Subsequently the complainant having ascertained that the accused was available in the village, filed a fresh complaint on 23-3-1962 against the accused-petitioner. A fresh process was issued against the accused and he appeared in court on 9th May, 1962. Proceedings against the accused started and one witness Inderchand, Food Inspector, was examined on behalf of the prosecution. When the case was still at the stage of recording prosecution evidence, the counsel for the accused submitted an application on 28th June, 1963 praying that as the previous complaint against the accused had been consigned to the record, the accused should have been treated as having been acquitted and the complaint should be dismissed as barred under Section 403, Criminal P. C. The Magistrate by his order dated 2nd July, 1963, dismissed the application and directed the proceedings to continue. The accused petitioner went in revision to the Court of Additional Sessions Judge, Sikar. The Additional Sessions Judge while disposing of the revision application referred to Section 249, Criminal P. C. which provides for the stopping of the proceedings in certain cases and observed that Section 249, Criminal P. C. cannot be applied to a case instituted on a complaint and that the order of the Magistrate stopping proceedings should be treated as an order of acquittal under Section 247, Criminal P. C. The Additional Sessions Judge then referred to two cases, namely, Bindra v. Mt. Bhagwanta, AIR 1925 Oudh 44 and Kiran Sarkar v. King Emperor, AIR 1924 Pat 140, which lay down that after an order of acquittal under Section 247, Criminal P. C. a fresh complaint is barred. In this view of the law, the Additional Sessions Judge has made the present reference. His recommendation obviously is that the order of the Magistrate dated 29-12-1961 in criminal original case No. 618 of 1961 operated as an order of acquittal and the fresh complaint was barred and that the Magistrate acted erroneously in dismissing the accused-petitioner's application dated 28th June, 1963.
3. None of the parties cared to appear to support or oppose the reference. The reference was placed before me in Chamber on 6th January, 1964. Entertaining some doubt as to the correctness of the view taken by the Additional Sessions Judge, f directed the issue of notices to the Government Advocate and the accused. The Deputy Government Advocate has appeared on behalf of the State. The accused has, however, not cared to appear in spite of service of notice on him.
4. I have examined the order of the Magistrate dated 29th of December, 1961, and examined the legal position. It may be at once observed that Section 249, Criminal P. C, providing for stopping of proceedings in certain cases could not apply to the criminal original case No. '618 of 1961 as that case was instituted on a complaint. Section 249, on its language is applicable only to summons cases instituted otherwise than- upon a complaint. The Additional Sessions Judge was, therefore, right when he recorded that the Magistrate could not have passed an order stopping the proceedings under Section 249, Criminal P. C. on 29th of December, 1961. So far I agree with the conclusion arrived at by the Additional Sessions Judge. I, however, find it difficult to agree with the further opinion expressed by the Additional Sessions Judge that the order of the Magistrate dated 29-12-1961 should be treated as an order of acquittal under Sec, 247, Criminal P. C. It may be mentioned here that Section 247, Criminal P. C. provides for acquittal of the accused or the ground of the absence of the complainant. In the presence of the complainant a complaint cannot be dismissed and the accused cannot be acquitted under Section 247, Criminal P. G. In the present case, on 29th of December, 1961, when the case No. 618 of 1961 was temporarily consigned to record the complainant was present. The Magistrate was unable to proceed with the case as the accused could not be served. In the circumstances, on a proper consideration of the language of Section 247, Criminal P. C. the Magistrate could not nave invoked Section 247, Criminal P. C. I am entirely unable to agree with the Additions Sessions Judge that the order of that Magistrate dated 29th December, 1961, should be treated as an order of acquittal under Section 247, Criminal p. C. That being so, the two cases AIR 1925 Oudh 44 and AIR 1924 Pat 140, relied upon by the Additional Sessions Judge and laying down that after the accused are acquitted under Section 247, Criminal P. C. a fresh complaint is barred, are irrelevant and have no application to the facts of the present case.
5. The question which then emerges Tor consideration is whether independently of Section 247, Criminal P. C. the order of the Magistrate dated 29th of December, 1961, stopping the proceedings can be treated as one of acquittal. Obviously the Magistrate while passing the order dated 29-12-1961 did not contemplate the termination of the criminal proceedings or trial. The accused being not available and it having become difficult for him to proceed with the case, he passed an order consigning the case to record until further orders. Now, the Code of Criminal Procedure containing no provision for passing of such an order in a summons case instituted on complaint, what should be the legal effect of such an Order Should it mean an implied acquittal? An examination of the provisions relating to the trial of summons cases reveals that there can be acquittal of the accused either after trial, or under Section 247, Criminal P. C. on account of the absence of complainant, or under Section 248, Criminal P. C. on a withdrawal of the complaint by the complainant. An order consigning the record temporarily on account of the non-availability of the accused obviously cannot be construed as to imply a completion of trial and, therefore, there can be no question of acquittal after trial in a case of the present type. Section 247, Criminal P. C. as shown earlier cannot also govern such a case. Considering Section 249, Criminal P. C., it will be sufficient to observe that an action on the part of the Court stopping proceedings in the absence of any suggestion on behalf of the complainant cannot be taken as a withdrawal of the complaint by the complainant. In this view of the matter, I am quite unable to treat the order as implying acquittal. It should then follow that such an order, if challenged as not permissible underthe Code of Criminal P. C., must be ignored as illegal and nullity and the criminal case should be treated as penciling in spite of such an order. In this view, I am supported by some observations made in Firangi Singh v. Durga Singh, AIR 1926 Pat 292. In that case a Magistrate stopped proceedings in a warrant case. A Division Bench of the Patna High Court considering the effect of the order stopping the proceedings observed that Section 249, Criminal P. C. could not be utilised in respect of warrant cases. The Bench further observed that the order stopping proceedings was obviously one which the Magistrate could not make and was illegal and was to be ignored for all purposes. The Division Bench further held that the case in spite of an order stopping the proceeding continued to be pending before the Magistrate and could be reopened by an application by the Crown or sue-motu by the Magistrate. Of course, it was observed in that case that it could not be started 'de novo' upon a private complaint but this observation was presumably made on the ground that a case at the instance of the police remaining pending a private complainant could not file a complaint. The observations with regard tc a warrant easel made in the above, case apply to a summons case instituted on a complaint on a parity of reasoning. The two kind of cases stand on the same footing so far as the applicability of Section 249, Criminal P. C. is concerned. Considering the nature of the order passed by the Magistrate while stopping proceedings and the circumstances of the case, I am not prepared to treat that order as one of acquittal. The case in spite of that order remained pending and was capable of being revived. The subsequent proceedings taken by the Magistrate on a fresh complaint were, therefore, quite in order and were not in contravention of the provisions of Section 403, Criminal P. C. The Magistrate was fully justified in overruling the plea of the accused and the Additional Sessions Judge is hardly justified in making the present reference.
6. The reference is consequently rejected.