1. The petitioner filed a complaint against a number of persons in which he disclosed an offence punishable under Section 427, Indian Penal Code. The Magistrate recorded his sworn statement; but there was nothing in it at variance with the allegations made in the complaint. The Magistrate, without giving any reasons, ordered the petition to be taken on file for an offence under Section 426, Indian Penal Code. When the accused came before the Court, the complainant was absent; and so the Magistrate passed' an order, purporting to be under Section 247, Criminal Procedure Code, acquitting the accused. As the offence disclosed was one punishable under Section 427, Indian Penal Code, the case was a warrant case. The question is whether the Magistrate could legally pass an order under Section 247, Criminal Procedure Code which does not apply to warrant cases.
2. Mr. Narayanaswami for the accused contends, and I think rightly, that it is open to a Magistrate who entertains a complaint and records a sworn statement to come to the conclusion that although the complaint allegations constitute an offence triable under the warrant procedure yet in fact a minor offence was committed, that he may adopt a summons procedure if the offence .appears to be one to which the summons procedure could be applied, and that he may proceed with the case as if the complaint was one on the minor charges only. It' does not however appear from the order passed by the Magistrate that he disbelieved any part of the complainant's story. In fact, he was not in a position to judge the extent of the damage caused, and the only distinction between an offence punishable under Section 426, Indian Penal Code and one punishable under Section 427; Indian Penal Code is the extent of the damage done. It would therefore appear that the Magistrate in issuing processes and mentioning Section 426, Indian Penal Code acted under a misapprehension and overlooked the facts that if the extent of the damage was greater than Rs. 50, the offence would be one punishable under Section 427, Indian Penal Code and that a warrant procedure would have to be adopted,
3. I therefore think that the Magistrate acted without jurisdiction in acquitting the accused. In view, however, of the fact that the accused were acquitted so long ago as 28th April, 1941, I do not think that justice requires that they should be embarrassed any further by a prosecution in a case like the present one.
4. The petition is therefore dismissed.