Lort-Williams, J.:— This is a Reference under Section 438 of the Cr PC, recommending that the order of the Sub-Divisional Magistrate of Meherpur, summoning the accused upon complaint of an offence under S. 426, Penal Code, be set aside. The facts are that on 17th May 1934, the Magistrate summoned the accused and two others to appear on the 31st. The accused duly appeared and warrants were issued against the other two. The case was adjourned to 14th June. On the 5th the second accused appeared a ad his case also was adjourned to the 14th. On that day accused 3 had not appeared and the Magistrate ordered the case to go on against the other two, and adjourned it to the 29th for evidence on both sides. On that day the complainant asked for time and the case was adjourned to 12th July, when witnesses were present on both sides, but both sides asked for time in order to compromise the case which was one between relatives. It was adjourned to the 23rd when the inquiry officer asked for time and the case was fixed for the 2nd August. Meanwhile, on 30th July, a report was received in the absence of the parties showing that the case had been compromised out of Court.

2. On 2nd August, the complainant had not appeared at 12 o'clock, and no step had been taken, and the Magistrate acquitted the accused under Section 247 of the Cr PC. On the following day, the complainant filed a fresh petition of complaint upon the same facts, saying that he had been present in the Court precincts on the previous day, but had not heard the Court crier calling the case. Thereupon the Magistrate again summoned the accused, who filed an application to quash the order, inasmuch as the previous order of acquittal was, under Section 403 of the Cr PC, a bar to further proceedings.

3. The Sessions Judge upheld that contention, and has recommended that the Magistrate's order be set aside. Section 247 of the Cr PC, provides that if a summons has been issued on complaint, and upon 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 there in before contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.

4. This section does not contain any bar to a second trial. Such bar (if any) depends upon Section 403 of the Cr PC. That section provides inter alia that 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. The explanation provides that the dismissal of a complaint, the stopping of proceedings under S. 249, the discharge of the accused or any entry made upon a charge under S. 273, is not an acquittal for the purposes of this section. It is to be observed that S. 247 is not mentioned in this explanation and the maxim expressio unius est exclusio alterius should apply. Moreover, in the Code of 1872, “trial” was defined to mean the proceedings taken in Court alter a charge has been drawn up, and includes the punishment of the offender.

5. But S. 460, thereof, corresponding to S. 403 of the present Code, contained no “explanation” as in the present Code, and in the latter “trial” has not been defined. Obviously, a summons case may be a trial, though no formal charge may have been framed: Section 242 of the Cr PC. Moreover, in sub-Ss. 2 and 4, S. 403 the word “tried” does not appear, though it is obvious that they are intended to refer to such persons as are mentioned in the first sub-section, namely persons who have been tried and acquitted or convicted. In 1918 Mad. 2121. Ayling and Napier, JJ., decided that since the word “tried” has been inserted in S. 403, due weight must be given to it, and it cannot be treated merely as surplusage. They held further that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused under Section 242 of the Cr PC. I agree with those learned Judges that due weight must be given to the word “tried,” but 1 do not agree that the trial of a summons case cannot be said to begin until the particulars of the offence are stated to the accused under the section referred to. As was said by Rankin, C.J, in the case of 37 C.W.N 3122, at 313:

It is very difficult to say at what stage, apart from the very earliest stage, trial does begin before a Magistrate. There it some ground for arguing that the moment the Magistrate takes cognizance of the offence, the trial commences. On the other hand, people may argue that in a warrant case not until the charge is framed can the trial be said to have begun.

6. In 25 Cal. 8633, Maclean, C.J, held that “trial” meant the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock, and the representatives of the prosecution and for the defence, if the accused be defended are present in Court for the hearing of the case. In the present case the Magistrate, this accused, and the complainant, were all present in Court on the first day, namely 31st May. In 1929 Bom. 4084, all the decisions upon the present point were ably reviewed by Patkar, J., and Baker, J., observed that S. 247 does not refer to the day upon which the accused appears, but to the day appointed for the appearance of the accused, showing that it is not necessary even that the accused should appear in order to attract the provisions of the section. In 1929 Cal. 1895, Mukerji, J., said that the was clearly of opinion that the word “tried” used in S. 403 does not necessarily import a decision of the case on the merits, but only refers to the nature of the proceedings that were had; or in other words, means that the proceedings in which the acquittal was passed were in the nature of a trial.

7. I find myself in complete agreement with these decisions. The provisions of the Code of Criminal Procedure upon the question of previous acquittal are, different from the principles underlying the English doctrine of autre fois acquit. Chap. XX of the Code deals with the procedure on the trial of summons cases by a Magistrate. S. 242 provides that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked of he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge. S. 243 provides that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. Ss. 244 and 245 provide the procedure when no such admission is made or when the Magistrate does not convict under S. 243.

8. But S. 247 provides that if the summons has been issued on complaint, and upon 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 there in before contained, acquit the accused, unless for come reason he thinks proper to adjourn the hearing of the case to some other lay. This section therefore overrides the previous provisions of the Chapter, and these sections and S. 403 must be ??? together. The result of doing so ??? to show that the intention of the legislature was that the procedure under S. 247 should be deemed to be a trial within the meaning of S. 403. The Magistrate ought to have stated the particulars of the offence to the accused under S. 242 when he first appeared on 31st May, and to have proceeded as laid down in that and the following sections. If he had done so, no argument could have been raised that the accused, was never on trial. But his omission to do so makes no difference to the point under discussion, when once section S. 247 has become applicable. That section applies if a summons has been issued on complaint and the complainant does not appear upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, and applies notwithstanding anything there in before contained. What is there in before contained becomes no longer of any importance or relevance, and if the Magistrate decides to acquit the accused then he must be deemed to have been tried within the meaning of S. 403, though the summons may not have been served and the accused may not have appeared. A clear distinction is drawn in the Code between “discharge” and “acquittal,” as will be seen by reference to S. 494 to the Explanation to S. 403 and to other sections. In my opinion the trial in a summons case commences when the Magistrate takes cognizance under S. 190 which comes under the heading “conditions requisite for initiation of proceedings.” The result is that the Reference must be accepted and the order set aside.

Jack, J.:— I agree with this view of the effect of an acquittal under Section 247 of the Cr PC. It is already laid down in 1929 Cal 189, and has been adopted in the Bombay, Madras and Allahabad High Courts in the cases already referred to by my learned brother. It is possible that one reason for omitting the definition of “trial” contained in the Code of 1882 from subsequent Codes was because it would not fit and with the meaning of the word as used in Section 403 of the Cr PC. On the other hand, instead of straining the meaning of the word “trial” in Section 403 of the Cr PC, to make it include merely taking cognizance, it would seem simpler to adopt the view taken by Sir John Wallis, C.J, in 1918 Mad 2316, that the rule of English Law, requiring the accused to have been tried as well as acquitted in order to bar further proceedings, and embodied in S. 403 of the present Code is inapplicable to the statutory acquittals introduced into the Code in Sections 494, 247 and 345 of the Cr PC, which are intended to bar further proceedings whether the accused can be said to have been tried or not. As he points out it was only in the Code of 1882 that on non-appearance of the complainant the Magistrate might acquit the accused unless he chose to adjourn. Up to that time he could merely dismiss the complaint. Inspite of the objection to treating anything in the language of the Code as mere surplusage, it seems to me that, on the present interpretation of the law, S. 403, Cl. (1), might have read simply:

a person who has since been acquitted or convicted by a Court of competent jurisdiction of an offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, etc.

9. This is confirmed by the wording of Cls. (2) and (4), S. 403. In prescribing the ways in which orders of acquittal can be set aside, while assuming that orders of discharge need not be set aside, and in differentiating generally between the terms “discharge” and acquittal, the Code makes it clear, apart from Section 403 of the Cr PC, that ordinarily an order of acquittal bars the trial of an accused for an offence of which he has been acquitted. The only cases in which there may still be some doubt as to the effect of an acquittal is where the accused is acquitted owing to the absence of the complainant on a date not fixed for hearing. It has been held that in these circumstances the order of acquittal is a nullity, and the case can proceed as though it had not been passed: 1915 Cal 1197. It has also been held that where the complainant had no notice of an adjourned date and was therefore necessarily absent an order of acquittal was not valid: 1928 Mad 11588. In such cases however the order of acquittal should be set aside before the case can proceed.

K.S

10. Reference accepted.