JUDGMENT D.D. Seth, J. - This reference has been made by the learned Temporary Civil and Sessions Judge, Banda. 2. The facts of the case are that the Deputy Regional Marketing Officer, Banda, filed a complaint against the appellant in the court of the learned Sub-Divisional Magistrate, Baberu, district Banda, for an offence alleged to have been committed by the applicant under Section 8 of the Rice Milling Industries (Regulation) Act, 1958. The learned Sub-Divisional Magistrate, fixed July 11, 1967 for the recording of prosecution evidence but on that date neither the complaint nor any other prosecution witness nor the complainant's counsel was present and the learned Sub-Divisional Magistrate passed the following order: "The accused is presenting with his counsel. There is no one to appear on behalf of the prosecution. The complainant is absent. He is exempted from attendance but no proceedings can be taken in the absence of a counsel. Hence the present complaint is filed for want of evidence. The accused is discharged. The seized goods will be handed over to G.P." 3. After the learned Magistrate had passed the above order the applicant was again prosecuted for the same offence in the court of the learned Magistrate 1st class and, thereupon, an application was filed on behalf of the applicant that he could not be prosecuted over again for the same offence in view of the provisions of Section 403, Criminal Procedure Code. On that application the learned Magistrate 1st class, on October 25, 1967, passed the following order: "I have carefully heard the learned counsel for the accused and the learned A. P. P. The courts order dated July 11, 1967 reveals that the records were filed since no evidence was forthcoming. The court itself had exempted the attendance of the complainant and under the circumstances the complaint was not dismissed under Section 247 Cr.P.C Section 403 C.P.C. does not bar the proceedings on that account. The case be registered and proceedings be taken further. Explanation appended to Section 403 Cr.P C. is explicit and clear on the point Fix November 6, 1967 for evidence before charge." 4. Against the order passed by the learned Magistrate on October 25, 1967 the applicant preferred a revision out which this reference has arisen. 5. The case be registered and proceedings be taken further. Explanation appended to Section 403 Cr.P C. is explicit and clear on the point Fix November 6, 1967 for evidence before charge." 4. Against the order passed by the learned Magistrate on October 25, 1967 the applicant preferred a revision out which this reference has arisen. 5. I have heard Sri K. N. Tripathi, learned counsel for the applicant in support of the reference, and Sri A. Hejela learned brief holder for the State who has opposed the reference. Sri Tripathi has contended that the order passed by the learned Magistrate on October 25, 1967 was illegal inasmuch as the previous order dated July 11, 1967 amounted to the acquittal of the applicant, and, therefore, the applicant could not be prosecuted for the same offence against in view of the provisions of Section 403 Criminal Procedure Code. 6. An offence under Section 8 of Rice Milling Industries (Regulation) Act, 1958 is punishable with imprisonment for six months or with fine not exceeding Rs. 500/-, and therefore, the applicant was triable under that section in a summons case and as such the order dated July 11, 1967 must be deemed to have been passed under Section 247, Criminal Procedure Code, acquitting the accused in the absence of the complainant and the complainant's evidence and his counsel on the date fixed at the trial. Before the referring court the learned counsel appearing for the State conceded that under Section 8 of the Rice Milling Industries (Regulation) Act, 1958 the trial of the applicant was triable as a summons case. Hence when the complainant or his witnesses or his counsel were absent on the date fixed the only course open to the learned Magistrate was either to adjourn the trial or to acquit the accused as required by Section 247, Criminal Procedure Code. Hence when the complainant or his witnesses or his counsel were absent on the date fixed the only course open to the learned Magistrate was either to adjourn the trial or to acquit the accused as required by Section 247, Criminal Procedure Code. Section 247 Criminal Procedure Code, reads as follows: "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 hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided that 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." 7. Since the Magistrate did not adjourn the case on July 11, 1967, the order passed by him discharging the accused and ordering the seized goods to be headed over to the applicant must be deemed to be an order acquitting the accused under Section 247 Criminal Procedure Code. There is no order on the record which shows that the personal attendance of the complaint had been exempted by the learned Magistrate and in any case even if it may be taken that the personal attendance of the complainant had been exempted some one at least must have been present on his behalf to tender evidence and to look after the case on July 11, 1967. In the absence of the complaint or his witnesses or his counsel the only course open to the learned Magistrate was to have proceeded under Section 247, Criminal Procedure Code and since the learned Magistrate did not act adjourn the case but passed an order of discharge that order must be deemed to mean the acquittal of the applicant for the learned Magistrate had no power to discharge the applicant in the circumstances in which the order was passed. Against the order passed by the learned Magistrate on July 11, 1967 no appeal or revision was filed by the complainant and, therefore, that order became final. Against the order passed by the learned Magistrate on July 11, 1967 no appeal or revision was filed by the complainant and, therefore, that order became final. After having been acquitted under Section 247 Criminal Procedure Code, the applicant could not be retried for the same offence in view of the clear provisions of sub-section (1) of Section 403, Criminal Procedure Code, as he had been acquitted on July 11, 1967 by a court of competent jurisdiction. In passing the impugned order on October 25, 1967 the learned Magistrate obviously took an incorrect view of the law and that order cannot be sustained. Sri A. Hejela, the learned brief holder for the State, submitted that in the instant case no trial was held by the learned Magistrate on July 11, 1967, and, therefore, the applicant was not acquitted by the learned Magistrate on merits and hence the subsequent order passed by the learned Magistrate on October 25, 1967 was a correct order. There is no force in this submission. It was held by a learned Single Judge of this Court in Indira Devi v. Dil Sukh, 1961 ALJ 85 as follows: "Actually the trial begins as soon as the Magistrate takes cognizance of the offence and issues process, and since, when an accused is acquittal under Section 247, Cr.P.C. process has already been issued, he must be deemed to have been duly `tried', as required by Section 403(1). 8. That an acquittal under Section 247 is a definite bar to a fresh trial on the same facts for the same offence." 9. I respectfully agree with the observations of the learned Single Judge in Indira Devi's case and held that the order passed by the learned Magistrate on October 25, 1967 was an illegal order and has to be quashed. 10. After hearing the learned counsel for the parties and for the reasons stated above I accept this reference and quash the order of the learned Magistrate dated October 25, 1967 and direct the learned Magistrate not to proceed with the trial of the applicant for an offence under Section 8 of the Rice Milling Industries (Regulation) Act, 1958.