Section 247 of the Code of Criminal Procedure is not applicable to warrant cases. Once the trial is rightly started as the trial of a warrant-case, there is no provision in the Code under which at a later stage the procedure can be changed to be one prescribed for trial of a summons-case.

J.N.KAUSHAL, J.

1. This revision petition, was referred by me to a larger Bench because of conflict of judicial decisions and also because I thought that the view of Bhandari, C. J., in Daulat Bam V/s. Ram Kishan, A I R 1958 Punj 317, required re-examination.

2. The facts are that Gurbax Singh respondent filed a complaint under sections 448, 506, 504, 379 and 427, Indian Penal Code, against Banta Singh and Pal Singh alias Kirpal Singh and Chanan Singh. After recording preliminary evidence, the Magistrate summoned the accused to stand their trial under sections 448, 427 and 504, Indian Penal Code. Chanan Singh accused after appearing in Court absented himself and proceedings had to be taken against him under section 512 of the Code of Criminal Procedure. On 14-12-1964, after recording the evidence examined on behalf of the complainant the Magistrate framed a charge under section 448, Indian Penal Code, against Banta Singh and Pal Singh. After the charge, the prosecution witnesses were further cross-examined by the accused and the case was adjourned to 27-3-1965. On that day, the statements of the accused had to be recorded under section 342, Code of Criminal Procedure. The complainant, was however, absent on that day and the accused were present. The Magistrate passed the following order:

The complainant is not present. It seems that he does not want to pursue the case. Therefore the complaint is dismissed in default of presence."

Gurbax Singh complainant was dissatisfied with this order and filed a revision petition which came for hearing before the Additional Sessions Judge, Amritsar. The learned Judge held that the impugned order which was passed by the Magistrate was illegal and bad in the eye of law. In his opinion, after the charge had been framed the Magistrate could not dismiss the case for default of appearance of the complainant. He characterised the order of dismissal as unknown to the Code of Criminal Procedure. The revision petition was accepted and the order passed by the learned Magistrate was set aside and the case was sent back to the Court of the Magistrate for disposal according to law. Banta Singh and Pal Singh accused have come to this Court in revision against the order passed by the Additional Sessions Judge, Amritsar.

3. According to Mr. Bhagat Singh Chawla, the learned counsel for the petitioners, the order which was passed by the Magistrate on 27-3-1965, was an order of acquittal and should be deemed to have been passed under S. 247 of the Code of Criminal Procedure. The learned counsel maintains that offence under S. 448 of the Indian Penal Code, under which a charge had been framed against the petitioners, was triable as a summons case and although the Magistrate had tried the case as a warrant-case, the benefit of S. 247 of the Code of Criminal Procedure could not be denied to the petitioners. Reliance for this contention was placed on Venkatarama Iyer V/s. Sundaram Pillai, AIR 1923 Mad. 439, AIR 1958 Punj. 317 and Bodu Ram V/s. Uda Ram, I. L. R. (1963) 13 Raj. 632. There is no doubt that these three Single Bench decisions support the contention of Mr. Chawla. A learned Single Judge of the Madhya Bharat High Court in Ratanlal Jagannath V/s. Haiku Deochand, AIR 1954 Madh B 2, has taken a contrary view.

4. After hearing the learned counsel at length and examining the authorities cited and the various provisions of the Code of Criminal Procedure, we are of opinion that the view of law taken by the Madhya Bharat High Court seems to be correct.

5. The Code of Criminal Procedure has laid down different procedures for the trial of summons-cases and warrant-cases. The procedure for the trial of summons cases is contained in Chapter XX and that of warrant cases in Chapter XXI. According to section 4 (1) (v) and (w), summons-case means a case relating to an offence and not being a warrant case: and warrant case means a case relating to an offence punishable with death, imprisonment for life or impriso