An order of discharge under S.245(2) of the CRPC, erroneously passed in a summons case, would be deemed to be an order of acquittal under S.256 of the CRPC, and would bar a second trial for the same offence under S.300 of the CRPC.

JUDGEMENT

Order :- The petitioners challenge the judgement and order of conviction passed against them under S.379 of the I.P.C. with a sentence of fine of Rs. 20/- and in default of payment thereof, to undergo rigorous imprisonment for seven days, passed against each of them, by the Subdivisional Judicial Magistrate, Bhadrak, in I. C. C. No. 281 of 1977 (Trial Case No. 1149 of 1977) for committing theft of fish from the tank in the possession of the opposite party on March 27, 1977.

2. Mr. S. Mohapatra for the petitioners has not challenged the findings of facts recorded by the trial court, but has submitted that for the alleged commission of the same offence the petitioners had been tried earlier in I. C. C. No. 88 of 1977 (Trial Case No. 456 of 1977) by the Judicial Magistrate, First Class, Bhadrak and they had been acquitted under Section 256 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), although the learned Magistrate had wrongly passed an order of discharge under Section 245(2) of the Code, which was not applicable to the case and therefore, a second trial for the commission of the same offence was barred in view of the provisions of Section 300 of the Code. The learned counsel for the opposite party has, however, submitted that as the petitioners had been discharged in a case of theft, the order of discharge passed against them could not bar a second trial for the commission of the same offence.

3. It is not disputed at the Bar that the two trials were for the commission of the one the same offence. As a matter of fact, this had been admitted in the petition of complaint itself by the opposite party in the subsequent case.

4. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both. As provided in Section 2(x) of the Code, a "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Thus the procedures prescribed in. Sections 244 to 247 of the Code for trials of warrant-cases instituted otherwise than on police report were ordinarily to be applied and in that case, the learned Magistrate, who had first tried the case, would be justified in passing an order of discharge under S.245(2) of the Code. It would be seen from the order passed in I. C. C. No. 88 of 1977 that on 21-9-1977, a date fixed for hearing of the case with a direction to the opposite party to produce the witnesses as per the order passed on the previous day, i.e., 23-8-1977, that the learned Magistrate decided and passed an order to try the case summarily in view of the fact that value of the property involved was about Rs. 100/- and then the particular's of the offence were explained to the petitioners who were present and to the learned Advocate representing some of them and the petitioners did not admit the accusations. A specific order was passed that the case would be tried summarily, Later in the course of the same day, the following order was passed :-

"The accused Golak Swain and Bhagabat Sahu and the R. L. for the other absentee accused persons are present, Representation filed in this regard is allowed. The prosecution has filed a Hazira of the complainant along with 3 other witnesses. On the first hour or the court, the case was called for, but none responded for the prosecution, least, the complainant and his lawyer. The case again was called for at 1.15 P.M. and number of times yet the prosecution does not respond. The Moharir Sri Sanatan Mohapatra is also contacted through the court peon who expressed his inability in this regard. That too, the witnesses and the complainant have not put their hands in the Hazira itself. Under such circumstances, it is clear that the complainant and the witnesses are not present in the court, but false Hazira has been filed. That apart, such conduct of the complainant cannot be encouraged and it is too, not des