Abdur Rahim, J.
1. A complaint was made under Sections 352 and 504, Indian Penal Code, before the 2nd Presidency Magistrate. On the date fixed for the else the complainant was absent and the Magistrate discharged the accused. Then a fresh bom-plaint was lodged with reference to the same transaction before the 3rd Presidency Magistrate and he held that so far as the offence under Section 352, Indian Penal Code, was concerned, the order of the 2nd Presidency Magistrate operated as an acquittal and that the case should be proceeded with only with reference to the offence under Section 504, Indian Penal Code. We are asked to consider whether the order of the 3rd Presidency Magistrate that there has been an acquittal within the meaning of the law with respect to the charge under Section 352 by reason of the previous order of the 2nd Presidency Magistrate, is right.
2. The case relating to an offence under Section 352 is a summing case, inasmuch as the punishment for such an offence is not more than 6 months' imprisonment, while the case relating to Section 504, Indian Penal Code, is a warrant case, the punishment under this section baing more than 6 months' imprisonment. It has been ruled in Rajnarain Koonwar v. Lala Tamoli Raut 5 Ind. Dec. 819 that where there are two offences complained of, one of which is triable as a warrant case and the other as a summons case, the proper procedure to be followed is that relating to the greater charge, namely, that of a warrant case. There is ho express provision in the Criminal Procedure Code with reference to this matter. The learned Judges of the Calcutta High Court apparently proceeded on a general principle that the procedure to be followed should be that laid down with reference to the major charge and not the more summary procedure with reference to the minor offence. Now the Magistrate under Section 235 of the Criminal Procedure Code is empowered, where more than one offence has been committed by a person by a series of acts so connected together as to form the same transaction, to try all the offences at one trial or separately. Here the transaction in which the two offences are alleged to have been committed was undoubtedly one and the same and the Magistrate could, therefore, try both the offences at one trial.
3. Then the question is whether he treated the case before him as a summons case or a warrant case, or as two cases, one a summons case and the other a warrant case. It seems to me that if he wanted to try the two offences together, the case would be one and not two separate cases: and the punishment which could be awarded against the accused in such a case would be more than 6 months' imprisonment and that would bring it within the definition of a warrant case. It has been pointed out by the learned Pleader for the accused that the complainant was absent when the case was taken up and he argues that it was open to the Magistrate at that stage to separate the two charges and try them as two different cases, one a summons case and the other a warrant case, and that we must presume that he did so and, therefore, his order of discharge must be taken to amount to an acquittal with reference to the offence under Section 362 But the Magistrate passed only one order, 'complainant absent. Accused discharged.' If he was, as suggested by the learned Pleader for the accused, treating the matter for trial before him as two separate cases and wanted to deal with the charge under Section 352, Indain Penal Code, under Section 247 of the Criminal Procedure Code, the proper order for him to pass would have been one of acquittal. But he did not pass any such order. The order he passed was one of discharge, which would be the proper one if he treated the case before him as a warrant case coming under Section 259, Criminal Procedure Code, which authorises him, in the absence of the complainant in a warrant case, to discharge the accused if the offence complained of was oompoundable. It would prima facie be unreasonable to suppose that where there are two charges arising out of the same transaction the Magistrate would think of separating the two, applying thereto two kinds of procedure. There was one transaction in the course of which the two offences are alleged to have been committed and in such a case the proper procedure, ordinarily speaking, is to have one trial; and then, as laid down in Rajnarain Koonwar v. Lola Tamoli Raul 5 Ind. Dec. 819 the case ought to be treated for purposes of procedure to be followed as a warrant case having regard to the graver charge. This rule has been followed in Rallabandi Sobhanadri, In re 29 Ind. Cas. 668by a learned Judge of this Court sitting singly and also in Hossein Sardar v. Kalu Sardar 29 C. 481 : 6 C.W.N. 599. It is also mentioned with approval in Samsudin, In re 11 Ind. Dec. 1056. I would, therefore, set aside the order of the 3rd Presidency Magistrate in so far as it holds that the order of the 2nd Presidency Magistrate dated the 27th August 1917 amounts to an acquittal of the offence under Section 352, Indian Penal Code.
4. Napier, J.--I agree. In my opinion there was no summons case before the 2nd Presidency Magistrate at all. The Magistrate took the complaint on his file, a number was given to it and he was prepared to hear it. The complainant was absent and he passed an order which was undoubtedly intended to be an order under Section 259 of the Criminal Procedure Code. It is therefore, clear to me that he was trying the whole case as a warrant case. The definition section does not speak of summons offences and warrant offences but of summons cases and warrant cases, and has reference to the case before the Court. Where the Code deals with offences it divides them into cognizable and non-cognizable, but where it is dealing with procedure then it speaks not of offences but of cases. I am, therefore, satisfied 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 faofc that one of the offenses complained of and tried by him in one case is one punishable by 6 months or less does not make that part of the trial a summons case. In this view it seems to me 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. For these reasons I agree with the order proposed by my learned brother.