B.K Behera, J.:— The petitioners challenge the judgment and order of conviction passed against them under section 379 of the Indian Penal Code 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. It is not disputed at the Bar that the two trials were for the commission of one and 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.

3. 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 section 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 the value of the property involved was about Rs. 100/- and then the particulars 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 of the court, the case was called tor, 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 desirable in the court of law. Therefore, I consider the charge made against the accused persons, groundless. Hence all the accused persons are hereby discharged U/s. 245(2), Cr. P.C (new).”

4. As provided in section 260 of the Code, the learned Magistrate could try in a summary way a case of theft punishable under section 379 of the Indian Penal Code when the value of the property stolen did not exceed two hundred rupees. Section 262 of the Code provides thus:—

“262. Procedure for summary trials -(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons case shall be followed except as hereinafter mentioned.

xxxxxx”

5. The learned Magistrate passed the order of “discharge” owing to the absence of the opposite party and his witnesses at the time when the case was called on for hearing and it was considered that the charge made against the petitioners was groundless. Since an earlier order had been passed by the learned Magistrate to try the case summarily, he was to follow the summons procedure and therefore, he was not to pass an order under section 245(2) of the Code discharging the petitioners, but could legally pass the order of acquittal under section 256 of the Code which would read thus:—

“256. Non-appearance or death of complainant.—(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 hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

6. When a court applies a wrong provision of law erroneously, it would be deemed that the order, in effect, was one under that provision of law applicable to the facts of the case. In a summons-case, when the complainant is absent on the day appointed for the hearing of the case, the Code does not provide to dismiss the complaint or discharge the accused. In the case of Nityananda Samal v. Naraprasad alias Narottam Sinah . 53 1982 C.L.T 71, this Court held:

“Each case has to be examined in its own context to determine as to whether there has been proper exercise of the discretion vested in the Court. When the complainant is absent, the Court can proceed in either of the three ways: (i) it may acquit the accused or (ii) adjourn the case or (iii) proceed to hear the case under the proviso if the complainant is represented by an advocate or by the officer conducting the prosecution or if the personal attendance of the complainant is not considered necessary”

7. The Magistrate may adopt either of the three courses. Where the complaint is dismissed after issue of summons to the accused on account of the absence of the complainant, the order would amount to one of acquittal irrespective of whether the Magistrate uses the word “discharged” or “acquitted”. In the case of Rajkumar Manisana Singh v. Nameirakpam Angou Singh . 1969 Cr. L.J 844., it was held that when the accused was charged for committing the offence triable as a summons-case and the Magistrate passed an order of discharge as both the parties were absent, the order of discharge would amount to an order of acquittal under section 247 of the Code (old) and a fresh trial for the same offence would be barred by section 403 of the Code (old), corres-ponding to the present section 300 of the Code. The same view has been taken in the case of The Public Prosecutor… v. Hindustan Motors Ltd.…. . A.I.R 1970 A.P 176. The order of discharge under section 245(2) of the Code must, therefore, be read as an order of acquittal passed under section 256 of the Code. There being no provision for revival of a case after acquittal, a Magistrate cannot set aside his own order or that of his predecessor or that of another Magistrate on the ground that acquittal was without jurisdiction. The remedy of the opposite party was to go up in appeal under section 378(4) of the Code. The opposite party, instead, chose to make an application for review of the order of discharge, which, as earlier indicated by me, would amount to an order of acquittal on the ground that section 245 had no application to the facts of the case and there was sufficient ground for his non-appearance at the time the case was called on for hearing. The learned Magistrate by his order dated 24-9-1977 held that there was no sufficient ground for the non-appearance of the opposite party. He further held that as he had been trying the case summarily under section 260 of the Code, the order of discharge passed by him under section 245(2) of the Code was not legal as the summons procedure was to be applied to the case being tried summarily and instead of recording an order of acquittal, he had passed an order of discharge and therefore, the order of discharge would amount to an order of acquittal. The learned Magistrate rejected the application for review of the order passed by him. The correctness or propriety of the order passed by the learned Magistrate who tried the first case became final and remained in force when the second petition of complaint was made. The order of acquittal recorded by the learned Magistrate cannot now be called in question. No doubt, the learned Magistrate had applied the wrong provision of law, but for the reasons aforesaid, the order of discharge would amount to an order of acquittal passed under section 256 of the Code.

8. Section 300 of the Code would bar a fresh complaint and another trial on the same facts as the word “tried” therein would not necessarily mean tried on merits. If the acquittal is without jurisdiction or the order of acquittal is non est, section 300 of the Code may not be applied. In the instant case, however, following as he did the summary procedure, the learned Magistrate did have jurisdiction to pass an order of acquittal under section 256 of the Code and so long as the order of acquittal was in force, no second complaint for the trial ot the same offence could lie. It admits of no doubt and law is well-settled that an order passed under section 256 of the Code would be a final order of acquittal which would operate as a bar under section 300 of the Code. Authority for this proposition would be found in the cases of Fula Bewa v. Badamali Das . A.I.R 1953 Orissa 257. Rasik Tatma v. Bhagwat Tanti . A.I.R 1958 Pat 239., Suku Ram Koch v. Krishna Deb Sarma . A.I.R 1929 Cal. 189. and Kanai Hizra v. Gopal Hizra . A.I.R 1953 Cal. 197.. In these cases, it had been held that an acquittal under section 247 of the Code of Criminal Procedure (old) would be a bar for another trial in view of the provisions of section 403 of the Code (old).

9. For the aforesaid reasons, I would uphold the legal contention raised on behalf of the petitioners that the second complaint for the commission of the same offence could not lie in view of the order of acquittal passed under section 256 of the Code, erroneously described as an order of discharge under section 245(2) of the Code.

10. It would follow that the second trial in which the impugned order of conviction had been recorded was illegal.

11. I would allow the revision and set aside the order of conviction and sentences passed against the petitioners.

12. Revision allowed.