DAVE, J.—This reference comes on the report of the learned Additional District Magistrate, Jodhpur dated 30th May, 1959.

2. The facts giving rise to it are that the non-petitioner in this court i.e. Shri Krishan presented a complaint in the court of the Magistrate Ist Class Jodhpur against the petitioner on 20th March, 1957 for offences under sec 426, 447, 448 and 379 IPC. The Magistrate proceeded to try the case as a warrant case because the offence under sec. 379 IPC. could be tried only as a warrant case. On the 11th August, 1958, the complainant was to produce his witnesses. On that date, he was absent and therefore the accused were discharged by the Magistrate under sec. 259 Cr.P.C. On the very next day i.e. 12.8.58, the complainant presented a fresh complaint in which he reiterated all the facts and allegations which were narrated by him in his original complaint dated 20th March, 1957. It was further added by him that his case was not shown on the cause-list and therefore he was doubtful if it would be heard on 11.8.1958. He remained present outside the court till 12-30 p.m. and thereafter he went away to answer the call of nature since he had pain in his stomach. On his return at about 1.00 p.m. it was found by him that his case was dismissed on account of absence. It was therefore prayed by him that the case should be tried again. The Magistrate entertained this fresh complaint and issued processes against the accused. The accused presented an application to the effect that the offences under sec. 447, 448 and 426 alleged against them were triable as a summons case, that the order dated 11.8.5 8 should be considered as one of acquittal under sec. 247 Cr.P.C. and therefore they could not be tried again. As regards the offence under sec. 379 IPC, it was urged that the order passed by the Magistrate should be deemed to have been made under sec. 253 (2) Cr.P.C. and therefore the complainant could not proceed against them even in respect of that charge. This application was dismissed by the Magistrate on 2.2.1959. Aggrieved by that order, the accused filed a revision application which was heard by the learned Additional District Magistrate Jodhpur. In his opinion, the order of the Magistrate dated 11.8.1958, should be taken as one of acquittal and therefore he has recommended that the order of the Magistrate dated 2.2.1959 should be set-aside. I

3. Learned counsel for the accused has tried to support the reference by referring to Venkatarama Iyar Vs. Sundaram Pillai(1), Mst. Manni Vs. Ramakishan(2) and Daulat Ram Vs. Ram Kishan(3).

4. Learned Advocate on the other hand contests the correctness of the view taken by the learned Additional District Magistrate and it is urged by him that the cases cited by learned counsel for the accused are not applicable to the facts and circumstances of the present case.

5. I have given due consideration to the arguments raised on behalf of both the parties. It may be pointed out that in the case of Venkatarama Iyer Vs. Sundaram Pillai (1), the allegation made against the accused was for an offence under sec. 430 IPC, but he was charged by the court for an offence under sec. 426 I.P.C. which was triable as a summons case. During the course of the trial, the complainant failed to put in his appearance and therefore the accused was acquitted by the court under sec. 247 Cr.P.C. In the revision application which was filed by the complainant, it was urged that the Magistrate had committed a mistake in acquitting the accused because the case against him was tried as a warrant case. It was observed by the learned Judges of the Madras High Court as follows: —

"The general principle must be that the right of the accused to benefit under sec. 247 of the Code of Criminal Procedure does not depend on the procedure which the Magistrate chose to adopt and was constrained to adopt by the complainant as laid, but on the nature and class of the offence for which he is being tried, at the time of the complainants

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