Ranawat, J.—This is a reference made by the Additional Sessions Judge of Sikar, dated the 26th July, 1949.

2. The complainant, Mt. Manni, filed a complaint under sections 313, 446 and 504 of the Penal Code against both the accused Ramakishan and Begulal in the court of First Class Magistrate at Sikar on the 14th of April 1948. After holding an enquiry, the Magistrate framed a charge against both the accused under sec. 341.

3. The accused then applied for an opportunity to cross-examine all the prosecution witnesses. On the 29th of April 1949 the complainant failed to appear and none of the prosecution witnesses, who were summoned to appear for being cross-examined, appeared. The Magistrate thereupon dismissed the case and acquitted the accused. He has not referred to sec. 247 Cr. P. C. in his order but the Sessions Judge has construed his order to be one under sec. 247 Cr. P. C. and he has therefore, recommended that once the trial of the case was begun as that of a warrant case the Magistrate had no authority to apply the procedure of the trial of a summons case and according to him an order of dismissal for default is illegal and should be set aside.

4. It may be observed that there seems a conflict of decisions among some of the High Courts in India on this point whether in a case, of which trial is begun as a warrant case, if subsequently it is found that the case made out against the accused is not a warrant case but is a summons case, provisions of Chapter XX Cr. P. C. can be made applicable to the further proceedings in the case from that point onwards ? In I.L.R. 7 Mad. 454 Mr. Justice Kernan held that "I do not see that there is any thing to prevent the Magistrate, when he ascertains that the warrant case fails, from then and there trying the accused for the minor case in the mode pointed out for trying summons cases." On the contrary, in 63 I.A. 619 Jwala Prasad J. of Patna High Court has observed that "where the trial of a warrant case has been commenced under chapter XXI of the Criminal Procedure Code, it should be continued and concluded by the procedure laid down in that chapter. It is not open to a Magistrate after commencing the trial of a case as a warrant case to change the procedure in the midst of the trial and conclude it by the procedure prescribed for summons cases in chapter XX of the Criminal Procedure Code." Similarly in A. I. R, 1927 All. 270 Kendall J. has held that "when once trial has begun according to the provisions relating to warrant cases, it is not open to the Magistrate to alter the section and to convict the accused without framing a charge." In A.I.R. 1933 Nagpur 192 it has been laid down than "when an enquiry has commenced as a warrant case the proceedings must continue as such, and the procedure of a summons case cannot be adopted to the prejudice of the accused although the case should have been tried as a summons case." In all these cases it is obvious that by changing the procedure of the trial, the accused were prejudiced in one way or the other on that account. The ratio decidendi of these cases is that when the trial of a case is commenced as that of a warrant case the procedure should not be changed to that of a summons case although the court comes to the conclusion that the offence made out is of the nature of a summons case when the change would be to the prejudice of the accused. In AIR 1923 Mad. 439 the case was tried as a warrant case but the accused was charged with an offence which was of the nature of a summons case and the Magistrate acting under sec. 247 Cr. P. C. acquitted the accused simply because the complainant failed to appear. On these facts, Wallace J. has laid down as follows : —

"Section 247 seems to be intended to lay down a general principle that a person charged with a summons case offence is entitled in law to an acquittal if the complainant is absent; and this right should not be denied to him simply because the Magistrate has adopted a warrant case procedur

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