D.S. Dave, J.
1. This reference comes on the report of the learned Additional District Magistrate, Jodhpur dated 30th May, 1959.
2. The facts giving rise to it are that the non-petitioner in this Court i.e. Shri Shree Krishan presented a complaint in the Court of the Magistrate 1st Class Jodhpur against the petitioner on 20th March, 1957 fox offences under Sections 426, 447, 448 and 379 I.P.C. The Magistrate proceeded to try the case as a warrant case because the offence under Section 379 I.P.C. could be tried only as a warrant case. On the 11th of August, 1958, the complainant was to produce his witnesses.
On that date, he was absent and therefore the accused were discharged by the Magistrate under Section 259 Cr. P.C. On the very next day i.e. 112-8-58, the complainant presented a fresh complaint in which he reiterated all the facts and allegations which were narrated by him in his original complaint dated 20th March, 1957. It was further added by him that his case was not shown on the cause-list and therefore he was doubtful if it would be heard on 11-8-1958.
He remained present outside the Court till 12-30 p. m. and thereafter he went away to answer the call of nature since he had pain in his stomach. On his return at about 1-00 p.m., it was found by him that his case was dismissed on account of his absence. It was therefore prayed by him that the case should be tried again. The Magistrate entertained this fresh complaint and issued processes against the accused.
The accused presented an application to the effect that the offences under Sections 447, 448 and 426 alleged against them were triable as a summons case, that the order dated 11-8-58 should be considered as one of acquittal under Section 247 Cr. P.C. and therefore they could not be tried again. As regards the offence under Section 379 I.P.C., it was urged that the order passed by the Magistrate should be deemed to have been made under Section 253(2) Cr. P.C. and therefore the complainant could not proceed against them even in respect of that charge.
This application was dismissed by the Magistrate on 2-2-1959. Aggrieved by that order, the accused filed a revision application which was heard by the learned Additional District Magistrate Jodhpur. In his opinion, the order of the Magistrate dated 11-8-1958 should be taken as one of acquittal and therefore he has recommended that the order of the Magistrate dated 2-2-1959 should be set aside.
3. Learned Counsel for the accused has tried to support the reference by referring to Venkatarama Iyer v. Sundaram Pillai AIR 1923 Mad 439, Mst. Manni v. Ramakishan 1950 Raj LW 223 and Daulat Ram v. Ram Kishan AIR 1958 Punj 317.
4. Learned Advocate on the other hand Contests the correctness of the view taken by the learn' ed Additional District Magistrate and it is urged by him that the cases cited by learned counsel for, the accused are not applicable to the facts and circumstances of the present case.
5. I have given due consideration to the arguments raised on behalf of both the parties. It may be pointed out that in the case of AIR 1923 Mad 439, the allegation made against the accused was for an offence under Section 430 I.P.C., but he was charged by the Court for an offence under Section 426 I.P.C. which was triable as a summons, case. During the course of the trial, the complainant failed to put in his appearance and therefore the accused was acquitted by the Court under Section 247 Cr. P.C. In the revision application which was filed by the complainant, it was urged that the Magistrate had committed a mistake in acquitting the accused because the case against him was tried as a warrant case. It was observed by the learned Judges of the Madras High Court as follows:
The general principle must be that the right of the accused to benefit under Section 247 of the Code of Criminal Procedure does not depend on, the procedure which the Magistrate chose to adopt-and was constrained to adopt by the Complainant as laid, but on the nature and class of the offence for which he is being tried, at the time of the complainant's failure to appear in Court.
6. I respectfully agree with the learned Judge s-that if the offence alleged against an accused is one which is triable as a summons case, the Court cannot simply by adopting a procedure laid down for the trial of a warrant case, deprive tie accused of the benefit under Section 247 Cr. P.C. The above case however does not take into consideration a matter in which the accused is charged with offences some of which are triable as warrant cases and the others as summons cases.
7. In the case of 1950 Raj LW 223, also the accused was charged only with an offence-under Section 341 which was triable as a summons case when the complainant failed to appear in the Court. In other words, the facts of that case were similar to that of AIR 1923 Mad 439 and therefore the same view was followed. Similarly in AIR 1958 Punj 317, the facts were akin to those of the two cases referred to earlier and therefore the view expressed in Venkatarama Iyer v. Sundaram Pillai and Ors. was adopted.
8. In the present case, the allegation against the accused was in respect of 4 offences - 3 of which could be tried as a summons case while the 4th under Section 379 I.P.C. could be tried only as a warrant case. Since there was a joint trial of all the offences, the Magistrate followed the procedure laid down for the trial of a warrant case. On before 11-8-1958 when the accused was discharged, there was no decision of the Magistrate to the effect that the allegation under Section 379 made against the accused was not made out. The question therefore arises whether in such circumstances when the Magistrate expressly made it clear in his order that he was dismissing the case under Section 259 Cr. P.C., it can be held that the accused should be deemed to have been acquitted under Section 247 Cr. P.C.
9. It may be pointed out that in Raj Narain Koonwar v. Lala Tamoli Raut ILR 11 Cal 91, two allegations were made against the accused - one of causing hurt which was a summons case and the other of a theft which was triable as a warrant case. Both the offences were tried jointly as a warrant case. The complainant being absent on the date fixed, the Magistrate purported to pass an order under Section 247. It was held by the learned Judges that the Magistrate ought to have passed an order for discharge and not of acquittal.
10. Similarly in Raghuvalu Naicker v. Singa Ham AIR 1918 Mad 371, there was a complaint against the accused under Sections 352 and 504, I.P.C. The Magistrate discharged the abused on account of the complainant's absence on a certain date. It was held, following the Calcutta view ILR 11 Cal 91 referred to above that where there are two offences complained of - one of which is triable as a warrant case and the other as summons case, the proper procedure to be followed is that relating to the graver charge, namely, that of a warrant case.
It was also held that unless the Magistrate chooses to separate the two offences which are complained of and take them up one as a warrant case and the other as a summons case, the fact that one of the offences complained of and tried by him is punishable by six months' imprisonment or less, does not make that part of trial as one of a summons case. It was further held that the Magistrate had no option but to pass an order under Section 259 if he decided to dispose of the case and that it was not open to him to apply the procedure which is only applicable where he is in fact trying a summons case, namely, the procedure under Section 247.
It is thus crystal clear from the above observations that the learned Judges of the Madras High Court have taken a different view where a ease triable as a summons case is tried along with a case which is triable as a warrant case and therefore the view taken in AIR 1923 Mad 439 should be confined to a case where an offence triable as a summons case alone is involved.
11. The Allahabad High Court has also followed the view expressed in AIR 1918 Mad 371 and Kanji Vijpal v. Pandurang Keshav AIR 1940 Bom 413 reported in Swaroop Singh v. Emperor AIR 1948 All 135. I respectfully agree with this view and in my opinion the accused cannot claim the benefit of Section 247 Cr. P.C. in a case where a summons case and a warrant case are tried together as a warrant case and the complainant hap' pens to be absent on a certain date of hearing.
12. The reference made by the learned Additional District Magistrate, Jodhpur, is therefore misconceived and it is hereby rejected.