Horwill, J.

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 commit