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 I.P.C. 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;
x x x x x x x
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 discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
x x x x x x x
A persual of sub-section (1) of section 300 of the Code aforesaid reveals that once a person is tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence and while such conviction or acquittal remains in force, such person was not liable to be tried again, inter alia, for the same offence. Sub section (5) bars trial even in the case of discharge under section 258 of the code for the same offence, except with the consent of the Court in question.
8. This Court in two cases viz. Harbhagwan Dass v. Daljit Singh, and the State of Punjab v. Surjit Singh and another, has held that acquittal in terms of section 256 - in a summons case - is to be treated as acquittal after a full trial.
9. It has, however, been urged on behalf of the respondent that since, while dismissing the first complaint the order passed qua the accused was of `discharge' and not of `acquittal, so the second complaint would not be barred by the provision of section 300 of the Code which creates a bar for the second prosecution only when a person is `convicted', or `acquitted' and in the case of `discharge' only if the discharge is under section 258 of the code and not otherwise.
10. In my opinion, there is no merit in this contention. Under section 256 of the code, the accused has to be `acquitted not `discharged'. The use of wrong expression in the order would be of no consequence and the said order of discharge has to be read as an order of acquittal. If any authority is needed for the said proposition, reference can be made to Bhim Sain v. Pritam Singh etc. and Guest Keen William Ltd. v. Murari Lal and another, 1984(1) Recent C.R. 152.
11. It was next contended that in view of the following explanation to section 300 of the code the discharge of the accused would not amount to acquittal for the purpose of section 300:-
"The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of section 300 :-
"The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section."
There is no merit in this contention also, for the simple reason that in the present case one is not deeming an order to discharge to be an order of acquittal as in this case the order is an order of acquittal and; in any case, ought to have been an order of acquittal.
12. Counsel for the respondent cited two judgment Rayappa and others v. Shivamma, and Mohammad Safi v. The State of West Bangal in support of the proposition that the discharge of the accused does not bar a second trial for the same offence on the same facts.
13. The above cited two cases relate to the discharge of the accused in a warrant-case. Hence, these two decisions are of no avail to the respondent.
14. For the reasons aforementioned, the petition is allowed and the second complaint is quashed.