N.G. Chaudhuri, J.
1. Union of India represented by the Assistant Collector of Central Excise, Burdwan Division, has come up in appeal under Section 378 of the Code of Criminal Procedure feeling aggrieved with the order of acquittal dated 2nd June, 1980 recorded by Judicial Magistrate, Durgapur, in C.R. Case No. 46 of 1978. The case arose out of a petition of complaint and on the date the impugned order was passed the complainant and his witnesses did not appear before the Court and the learned Magistrate passed the following order :
'In the circumstances I am inclined to deal with the case in accordance with Section 256, Cr.P.C. Accordingly, the accused persons are entitled to be acquitted under Section 256, Cr.P.C. Hence, ordered, that the accused persons be acquitted under Section 256, Cr. P.C.'
2. The order of acquittal quoted above leaves no room for doubt that the learned Magistrate treated the case as a summons case. In appeal, therefore, a very interesting question has been raised if the case under consideration of the learned Magistrate was a summons case as he purported to treat it. On behalf of the appellant it is argued that the complaint disclosed a warrant case and accordingly the learned Magistrate should have treated the case as a warrant case and should have applied the procedure laid down in Chapter XIX of the Cr. P.C.
3. After proper appreciation of the contentions raised by the learned Advocates it would be sufficient to observe that the complaint disclosed an offence under Section 9(1)(d)(ii) of the Central Excises and Salt Act, 1944 (vide paragraph 20 of the petition of complaint). Section 9(1)(d)(ii) lays down that whoever commits any offence under the above clause shall be punishable 'with imprisonment for a term which may extend to three years or with fine or with both'. It is common knowledge that the measure of punishment prescribed for an offence will determine the nature of the case, i.e., whether it will be treated as a warrant case or a summons case. In this connexion we may refer to Section 2(x) of the Cr. P.C., 1973 defining a warrant case. The definition is as follows :
' 'Warrant case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.'
4. A summons case has been defined in Section 2(w) of the Code to mean a case relating to an offence, and not being a warrant case. It is, therefore, urgent and important to find out if the offence disclosed in the petition of complaint is punishable with imprisonment exceeding two years to be treated as a warrant case. If it is not a warrant case, only then it will be treated as a summons case. The learned Advocate for the respondents, in this connection, points out that the relevant provisions of the Central Excises and Salt Act, 1944 earlier quoted indicates that the maximum punishment prescribed for the offence disclosed in the petition of complaint in the instant case is three years and the minimum sentence prescribed is fine. He accordingly submits that taking into consideration the possibility of imposition of the minimum sentence the Court was well entitled to treat the case as a summons case. Mr. Sanyal, the learned Advocate for the appellant, however, contends differently. He argues that the maximum sentence for the offence prescribed by a statute will determine the character of the case in which the accused will be tried. He relies on the decision of Biswas, J., in Sufal Golai v. Emperor reported in AIR 1938 Cal 205 which lays down :
'In considering whether the trial should be in accordance with procedure of a summons case or of a warrant case, it is not pertinent to consider the nature of the offence, but only the measure of the punishment which may be inflicted. That constitutes the deciding factor.'
5. In the aforesaid case the accused was prosecuted under Section 46(a) of the Excise Act prescribing by way of punishment imprisonment for a term exceeding six months in the maximum. But in the challan previous conviction of the appellant was disclosed for which higher punishment exceeding the limit set out in Section 46 of the Bengal Excise Act could be imposed. Taking into consideration that fact it was held that the case was triable as a warrant case. For fortifying his arguments Mr. Sanyal also refers to the case of Kesho Sao v. State of Bihar, reported in : AIR1969Pat105 . We have no doubt that in determining the nature of the case the Court will have to be guided by the consideration of the maximum punishment liable to be imposed on the accused according to the disclosures made in the petition of complaint. The advantage of following this procedure is that treating the case as a warrant case the Magistrate trying the case will be competent to impose the minimum punishment, while the disadvantage of treating the case as a summons case would be that the Magistrate trying the case as a summons case would not be in a position to impose the ' maximum punishment prescribed if the gravity of the offence so demands. We have, therefore, no hesitation to hold that the determining factor for deciding the character of a case as a warrant case or a summons case would be the highest measure of punishment prescribed for the offence disclosed. Applying that test to the present case we have not the slightest doubt that the learned Magistrate was wrong in recording the acquittal of the case under Section 256 of the Code which is possible only in a summons case. The consequence of such an order of acquittal is that the accused cannot be prosecuted again for the same offence. If the learned Magistrate was so inclined for absence of the complainant he could have ordered discharge of the accused under Section 249 of the Code treating the case as a warrant case. But the learned Magistrate did not do so. The order of acquittal, therefore, impugned before us is highly prejudicial to the appellant. In this connexion the learned Advocate for the respondents fairly draws our attention to order No. 16, dated 16th November, 1979 recorded by the learned Magistrate himself in the case. Therein he observed that on perusal of the complaint and the relevant provisions of the Act it appeared to him that the offence alleged liable to be punished with a sentence of more than two years and as such the accused persons could not be examined under Section 251 Cr. P.C. But a date of evidence before charge was to be fixed after considering evidence and material on record. The learned Advocate for the respondents argues with every justification that the learned Magistrate was fully aware that the case deserved to be treated as a warrant case but at the time of passing the order of acquittal impugned before us the learned Magistrate forgot his earlier order and made a confusion regarding the character of the case. The learned Advocate, in the above premises, submits that this Court may construe the order of acquittal impugned in appeal as an order of discharge under Section 249 of the Code. We have our difficulties in so construing the order, the most obvious of which will be that a fresh complaint for the same offence filed hereafter may be held to be barred under Section 468 of the Code. So, we do not proceed that way. We are convinced that the learned Magistrate was wrong in treating the case as a summons case when he passed the impugned order of acquittal in the case in exercise of his power under Section 256 Cr. P.C. In the result the appeal will succeed. Hence ordered that the appeal against the order of acquittal is allowed on contest. The order of acquittal is set aside. The learned Magistrate is directed to treat the case as a warrant case and try it according to the procedure prescribed by the Code. The records of the case be sent down to the Court below with direction to dispose of the case as expeditiously as possible.