1. It is not contended on behalf of the accused that the order for payment of compensation can stand. It is set aside and the money paid (if any) must be refunded.
2. The case before the Magistrate was a summons case; he tried it, the Sessions Judge says, as a warrant case, and discharged the accused. The Sessions Judge suggests that if the accused had been tried in accordance with the procedure prescribed for the trial of summons cases, he might have pleaded guilty, but there is nothing in the record to suggest that he would have admitted any facts which he did not admit, or that the 1st class Magistrate would have had any more evidence before him to prove the facts necessary to establish an arrest as he (the Magistrate) understood it. Toe procedure adopted has not prejudiced the prosecution. But however that be, the accused is not to be prejudiced by the adoption by the Magistrate of the wrong procedure and to hold that he is an accused person who has been discharged within the meaning of Section 437, would, it seems to me, seriously prejudice him. The true view is, I think, this, that if the Magistrate trying a summons case, whatever procedure he adopts, finds no case made out against the accused, and lets him go unconditionally, he acquits him though he may style his order of acquittal an order of discharge, and tack on to it the number of some section of the Code which deals with discharges. The accused is none the less, in law, acquitted, for the Code contemplates no other order in summons cases. That being so, the Sessions Judge has no power to take action under Section 437.
3. It is suggested that I should set aside the 'whole proceedings and order a re-trial, but I do not think 1 ought to do that. Even if there was a technical escape from custody, there was no attempt by the accused to abscond from the jurisdiction of the District Munsif and the case is not one which it is at all necessary in the interests of justice to re-open now.
4. I, therefore, simply set aside the Sessions Judge's order as made without jurisdiction.