1. This is a reference under S. 438, Criminal P.C. One Ratanlal filed a complaint under Ss. 439, 349 and 503, Gwalior Criminal P.C. against Halku and Mst. Gumni in the Court of the Sub-Divisional Magistrate, Basoda. The Sub-Divisional Magistrate framed a charge-under S. 349 on 18-5-1950. On 31-8-1950 he dismissed the complaint and acquitted the accused, because the complainant was absent. The complainant filed a revision before the Additional District Magistrate, Bhelsa, who had made this reference.

2. The offence under S. 503, Gwalior Penal Code being punishable with two years' rigorous imprisonment, the complaint was rightly tried as a warrant case. The learned Sub-Divisional Magistrate framed a charge under S. 349. A complaint under S. 349 is a summons case. Hence the Magistrate gave the accused benefit of S. 247, Criminal P.C. and acquitted him. The question for consideration is whether when a trial is started as a warrant case a Magistrate can change the procedure because he frames the charge of an offence which is triable as a summons case. The view taken by various High Courts is where a trial is started as a warrant case the procedure should not be changed even if the