J. M. SHETH, J. ( 1 ) THIS is a Reference made by the learned Sessions Judge Kutch at Bhuj recommending that the order passed by the learned Judicial Magistrate First Class Mandvi in Criminal Case No. 979 of 1972 convicting the petitioner-accused for the offence under sec. 131 read with sec. 33 (1) (w) (i) of the Bombay Police Act and sentencing him to pay a fine of Rs. 10/and in default to undergo two days simple imprisonment be set aside as it is illegal the reason being that a complaint filed against him in respect of that very offence in that very Court by another policeman named Dalabhai was dismissed and the petitioner-accused was acquitted under sec. 247 of the Criminal Procedure Code on 7-9- (1972) in that Criminal Case No. 1015 of 1972. ( 2 ) THIS recommendation has been made by him on the basis of the provisions of sec. 403 of the Criminal Procedure Code. Sub-sec. (1) of sec. 403 of the Criminal Procedure Code reads as under:"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 sec. 236 or for which he might have been convicted under sec. 237. "the explanation given to section reads :"the dismissal of a complaint the stopping of proceedings under sec. 249 the discharge of the accused or any entry made upto a charge under sec. 273 is not an acquittal for the purposes of this section. "sec. 247 of the Criminal Procedure Code under which the petitioner-accused came to be acquitted in the previous proceeding does not fall within the provisions referred to in the said explanation. ( 3 ) IN the instant case two complaints were filed against the petitioneraccused for the aforesaid offence alleged to have been committed by him an 3-8-1972 at 4-25 P. M. One complaint was filed by complainant Lavji and the other by Dalabhai. Both these policemen entered the shop of the petitioner at 4-25 P. M. on 3-8-1972 and each of them filed a separate complaint in respect of that very offence. Both these policemen entered the shop of the petitioner at 4-25 P. M. on 3-8-1972 and each of them filed a separate complaint in respect of that very offence. The complaint filed by Dalabhai was heard first. The plea of the accused was recorded and he pleaded not guilty. On the day on which the evidence was to be recorded the complainant was absent and so the order was passed under sec. 247 of the Criminal Procedure Code by the Judicial Magistrate First Class Mandvi and the said order of acquittal was passed on 7-9-1972. Thereafter the second complaint filed by Lavji in respect of this very offence was taken on the board. The deposition of the complainant was recorded and the order of conviction in question was passed on 18-10-1972. The case in question was a summons case. Chapter XX of the Criminal Procedure Code provides for the procedure to be followed in trial of summons-cases by Magistrates. Sec. 242 of the Criminal Procedure Code reads:" 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 if he has any cause to show why he should not be convicted but it shall not be necessary to frame a formal charge. "this section clearly indicates that in the trial of summons-cases when the accused appears or is brought before the Court the particulars of the offence of which he is accused have to be stated to him and his plea is to be recorded. It is not necessary to frame a formal charge. Sec. 243 of the Criminal Procedure Code further indicates that if accused admits that he has committed the offence and if he does not show sufficient cause why he should not be convicted the Magistrate may convict him. If he is not so convicted sec. 244 indicates that he has to proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. If he is not so convicted sec. 244 indicates that he has to proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Sec. 247 of the Criminal Procedure Code which is material for our purpose reads:"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. " ( 4 ) IT is evident that the order that was passed in the previous complaint of acquitting the accused was passed as contemplated by sec. 247 of the Criminal Procedure Code. It is therefore evident that it is an order of acquittal passed and such an order will not fall within the explanation to sec. 403 of the Criminal Procedure Code. In that view of the matter the Magistrate in view of the provisions of sec. 403 of the Criminal Procedure Code was not competent to hear the complaint filed by another police constable and record the order of conviction and sentence which has been passed by him in Criminal Case No. 979 of 1972. This conclusion of mine gets support from the decision of a Division Bench of the Bombay High Court in Shankar Dattatraya Vaze v. Dattatraya Sadashiv Tendulkar A. T. R. 1929 Bombay 408. It is observed therein that under sec. 247 it is not necessary that the summons should be served on the accused or that he should be present in Court before an order of actual can be passed in his favour on account of the absence of the complainant. The word tried in sec. 403 does not necessarily mean tried on merits and such acquittal bars fresh trial. It is observed at page 409 as under: It is clear that the previous order of acquittal has remained in force and has not been set aside by any order of a superior Court. The word tried in sec. 403 does not necessarily mean tried on merits. The composition of an offence under sec. It is observed at page 409 as under: It is clear that the previous order of acquittal has remained in force and has not been set aside by any order of a superior Court. The word tried in sec. 403 does not necessarily mean tried on merits. The composition of an offence under sec. 345 Criminal Procedure Code or a withdrawal of the complaint by the Public Prosecutor under sec. 494 Criminal Procedure Code would result in an acquittal of the accused even though the accused is not tried on merits. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint. Under the explanation to sec. 403:" the dismissal of a complaint the stopping of proceeding under sec. 249 the discharge of the accused or any entry made upon a charge under sec. 273 is not an acquittal for the purposes of this section. "the composition of an offence under sec. 345 the withdrawal under sec. 494 or an acquittal under sec. 247 Criminal Procedure Code is not included in the explanation to see. 403 Criminal Procedure Code. It is urged however on behalf of the applicant that though the word tried may not mean trial on the merits yet the trial must commence before an order of acquittal is passed and that unless a summons is served in a summons case against the accused the trial cannot be said to have commenced against the accused. We are of opinion that as soon as a Magistrate takes cognizance of an offence and an order for summons is issued the proceedings have commenced against the accused and under sec. 247 it is not necessary that a summons should be served or that the accused should be present in Court before an order of acquittal might be passed in his favour on account of the absence of the complainant. " The case which I have to consider stands on a stronger footing than the aforesaid case which the Division Bench of the Bombay High Court had to consider. ( 5 ) IN the instant case the particulars of the offence were explained to the accused and his plea was recorded. On the day the evidence was to be recorded the complainant remained absent and the order of acquittal under sec. 247 of the Criminal P. C. came to be passed. ( 5 ) IN the instant case the particulars of the offence were explained to the accused and his plea was recorded. On the day the evidence was to be recorded the complainant remained absent and the order of acquittal under sec. 247 of the Criminal P. C. came to be passed. ( 6 ) IN Haveli Ram v. Municipal Corporation of Delhi A. I. R. 1966 Punjab 82 a single Judge of the Punjab High Court has observed that there are two views with regard to the meaning and scope of the word tried in sub-sec. (1) of the sec. 403; one view is that the accused must be present in Court on being summoned before it can be said that the trial has commenced and the other is that once the Court has taken cognizance of a complaint or a criminal case and has ordered issue of process for the accused to"to appear it has taken steps towards the trial and what it has done is proceedings in the nature of a trial. The latter view accords more with the explanation to sec. 403 of the Code because were it the intention of the Legislature to exclude acquittals under secs. 247 and 248 from the scope of sec. 403 it could have specifically provided for it as is done in the explanation in the case of stopping of proceedings under sec. 249 or the discharge of the accused or an entry made upon a discharge under sec. 273. "the Bombay High Court has taken the same view and I am bound by that decision also. The said decision has been given prior to the date of the bifurcation of the Bombay State. It is thus evident that the trial in Criminal Case No. 979 of 1972 was barred in view of the provisions of sec. 403 of the Criminal Procedure Code. ( 7 ) THE order of conviction and sentence recorded against the petitioneraccused therefore cannot be sustained in lawthe Reference is therefore accepted and the order of conviction and sentence recorded against original accused Kashigar Ratangar in Criminal Case. No. 979 of 1972 is set aside Fine if paid by him is orderd to be refunded to him. Rule is made absolute. Reference allowed .