Discharge of the accused in a summons case is equivalent to an acquittal and bars a second trial for the same offence on the same facts.

D.S.Tewatia, J.:- This order would dispose of Criminal Misc. No. 2226-M of 1983 and Criminal Misc. No. 363-M of 1986, as a common question of law is involved in both these petitions. For facts, reference is made to the contents of Cr.Misc.No. 2226-M of 1983.

2. Sham Sunder Sharma, respondent No. 2, filed a complaint under sections 499 and 500 Indian Penal Code in the Court of Judicial Magistrate First Class, Chandigarh, against Sarvshri M.M.S.Bedi, Rajinder Singh Raj and M.S.Malhotra. The accused were summoned by order dated 14th December, 1982, for 5th February, 1983. On that date, two of the summoned accused, namely, Rajinder Singh Raj and MS.Malhotra were present.Summons issued to Shri M.M.S.Bedi remained unexecuted. On that date, however the complainant did not appear. The Magistrate, therefore, in view of the provisions of section 256, Code of Criminal Procedure, 1973, hereinafter referred to as to Code, dismissed the complaint in default of prosecution and passed an order of discharge against the summoned accused.

3. The complainant filed a second against the said accused on 9th February, 1983, for the same offence and on similar facts. The Magistrate summoned the accused on 10th February, 1983. The accused moved an application for discharging them in the second complaint. That application was dismissal by the Magistrate by his order dated 5th April, 1983 annexure P.5. One of the said accused, namely, Shri M.M.S.Bedi has impugned his prosecution on the second complainant on the ground that in view of the provisions of section 300 of the Code second complaint for the same offence and on the same facts is not competent and the court cannot take cognizance of such a complaint.

4. In my opinion, this petition deserves to be allowed for reasons hereinafter detailed.

5. The offence is question was triable as a summons case, in view of the provisions of section 2(w) of the Code which defines a summons case and section 2(x) of the Code which defines a warrant case - the maximum sentence in the event of conviction being only two years for the offences, as per First Schedule of the Code.

6. Chapter XX of the Code of deals with the Trial of Summons cases by Magistrates. Section 256, the relevant portion of which is in the following terms, provides for the contingency when the complainant is absent on the date fixed for appearance of the accused or on any subsequent date to which hearing is adjourned :-

"256(1). If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the bearing of the case to some other day;

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A perusal of section 256(1) aforementioned would show that if on the given date the complainant is absent, the Magistrate shall acquit the accused unless for some reason the Magistrate considers it proper to adjourn the hearing of the case to some other date. In the present case, the Magistrate did not think it proper to adjourn the hearing of the case to some other date and dismissed the complaint for want of prosecution and passed an order of discharge.

7. The relevant provision of section 300 of the Code, which provides that persons once convicted or acquitted not to be tried for same offence is in the following terms :-

"300(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force,not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted sub-section (2) thereof.

x x x x x x x

(5) A person di