JUDGMENT This revision is directed against the order, dated 12th May, 1980, passed by the Judicial Second Class Magistrate, Srikalahasti in an unnumbered Criminal case of 1980. 2. The petitioner herein filed a private complaint before the Judicial Second Class Magistrate, Srikalahasti, which was registered as C. C. No. 4 of 1980 under sections 147 , 447 and 427, Indian Penal Code. As the complainant was absent on 15th May, 1980, to which date the case was posted for trial the learned Magistrate acquitted the accused applying the provisions of section 256 (1), Criminal Procedure Code. The petitioner herein again filed a second complaint against the very same accused in the same Court for the same offences viz., under sections 147 , 447 and 427, Indian Penal Code. The learned Magistrate rejected the private complaint filed by the petitioner herein on the ground that since the accused in the previous C. C. No. 4 of 1980, was acquitted on the ground that the complainant was absent on 15th May, 1980, a fresh complaint against the same accused for the same offences cannot lie under section 300 (1), Criminal Procedure Code. Aggrieved with the said order, this revision petition is filed. 3. Sri Adinarayana Reddy contends that the Explanation to section 300 , Criminal Procedure Code, says that the dismissal of a complaint is not an acquittal for the purpose of the provisions of section 300 (1) , Criminal Procedure Code, and hence the learned Magistrate committed illegality in holding that fresh complaint is barred by section 300 (1), Criminal Procedure Code, if the previous complaint, was dismissed on the ground that the complainant was absent. 4. Sri Koka Raghava Rao, the learned Counsel for the respondent, on the other hand, contends that the dismissal of the complaint mentioned in the Explanation to section 300 , Criminal Procedure Code, does not deal with or refer to an order of acquittal passed by the Magistrate under section 256, Criminal Procedure Code. He contends that as the provisions of section 256 , Criminal Procedure Code, are applied for acquitting the accused on the absence of the complainant on the date when the matter was called, it is the provisions of section 300 (1) , Criminal Procedure Code, that apply and the Explanation to section 300, Criminal Procedure Code, has no application at all. 5. 5. The question that requires consideration is whether the second complaint on the same allegations against the same accused is barred by the provisions of section 300 (1), Criminal Procedure Code. 6. Admittedly, the petitioner filed a private complaint before the Judicial II Class Magistrate, Srikalahasti and it was taken on file as C. C. No. 4 of 1980 under sections 147 , 447 and 427, Indian Penal Code, and it was adjourned from time to time and it was posted to 15th May, 1980. On that day, the complainant was absent. Hence the learned Magistrate applied the provisions of section 256 (1), Criminal Procedure Code, and acquitted the accused. Section 256 (1), Criminal Procedure Code, reads as follows: “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 herein before 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 attendence and proceed with the case. (2) * * * * *”. 7. A careful reading of this provision makes it abundantly clear that where a private complaint was taken on file and summons were issued to the accused and the case was posted to a particular day for the hearing of the case and the complainant does not appear on that day, the Magistrate shall acquit the accused. When once the accused was acquitted by the Magistrate on his applying the provisions of section 256 (1), Criminal Procedure Code, on the ground that the complainant was absent on the date to which the case was posted for hearing the order of acquittal debars the complainant from filing fresh complaint for the same offence against the same accused. It is true that Explanation to section 300, Criminal Procedure Code, says that the dismissal of a complaint or the discharge of the accused is not an acquittal for the purposes of this section. It is true that Explanation to section 300, Criminal Procedure Code, says that the dismissal of a complaint or the discharge of the accused is not an acquittal for the purposes of this section. But the Explanation to section 300, Criminal Procedure Code, does not refer to or deal with the cases of acquittal passed under the provisions of section 256 (1), Criminal Procedure Code. It deals with those dismissals of complaints’ which have no effect or acquittals. The non-mention of section 256, Criminal Procedure Code, in the Explanation to section 300 , Criminal Procedure Code, would clearly show that the Explanation is not intended in any way to limit the effect of an order of acquital under section 256, Criminal Proce-dure Code. The reasons are obvious. A trial in a summons case commences with the issue of notice to the accused. Hence the accused should be deemed to have been tried and acquitted as per the order of acquittal passed under the provisions of section 256 (1), Criminal Procedure Code, when such an order of acquittal was passed on account of the absence of the complainant. The word “tried” in section 300 (1), Criminal Procedure Code, does not necessarily imply a decision on merits. It is for this reason that the provisions of section 300 (1) , Criminal Procedure Code, would operate as a bar to a further trial and the order of acquittal passed under section 256 , Criminal Procedure Code, does not therefore, fall within the Explanation to section 300, Criminal Procedure Code. 8. As early as in 1910 the Madras High Court took, this view In the matter of Guggilapu Paddayya of Palakot1. In this case both the complainant as well as the accused were absent on the date to which the matter was posted for hearing. Then the Magistrate applied the provisions of section 247, Criminal Procedure Code, (which correspond to section 256, Criminal Procedure Code, of the present Code,) and acquitted the accused. Again the same complainant filed a fresh complaint on the same facts and against the same accused. The Magistrate took the case on file and tried and disposed of the case convicting and sentencing the accused to pay a fine of Rs. 5 or in default to suffer five days’ rigorous imprisonment under section 352, Indian Penal Code. Again the same complainant filed a fresh complaint on the same facts and against the same accused. The Magistrate took the case on file and tried and disposed of the case convicting and sentencing the accused to pay a fine of Rs. 5 or in default to suffer five days’ rigorous imprisonment under section 352, Indian Penal Code. On appeal the Head Assistant Magistrate reversed the conviction and sentence on the ground that the conviction of the lower Court was illegal under section 403 , Criminal Procedure Code, which corresponds to the present section 300, Criminal Procedure Code. Hence a revision before the High Court was filed by the complainant. Abdur Rahim, J., observed that the effect of section 247, Criminal Procedure Code, undoubtedly is that the order amounted to an acquittal. But it was urged in the letter of reference that section 403, Criminal Procedure Code, will not bar a fresh trial unless the accused had in the first case been “tried” and he could not be said to have tried unless he had appeared in answer to the summons. The learned single Judge did not accept this contention. The learned Judge examined the effect to be given to the word “tried” in section 403 , Criminal Procedure Code, in cases falling under section 247 , Criminal Procedure Code, and observed that the word “tried” in section 403 , Criminal Procedure Code, does not necessarily import to decision of the case on the merits so far at least as proceedings under section 247, Criminal Procedure Code, are concerned and any other construction would render the provisions of the later section nugatory. The non-mention of section 247 , Criminal Procedure Code, in the Explanation to section 403 , Criminal Procedure Code, would also show that the latter section was not intended in any way to limit the effect of an order of acquittal under section 247, Criminal Procedure Code. Therefore the word “tried” in section 403, Criminal Procedure Code, does not necessarily imply decision on the merits. The learned single Judge, therefore, held that an accused who had been served with process in a summons case and does not appear is entitled to the full benefit of an acquittal when the case against him has been dismissed under section 247, Criminal Procedure Code. 9. The learned single Judge, therefore, held that an accused who had been served with process in a summons case and does not appear is entitled to the full benefit of an acquittal when the case against him has been dismissed under section 247, Criminal Procedure Code. 9. The above decision was followed by a Division Bench of the same High Court in Kotayya v. Venkayya, (1911) I.L.R. 34 Mad. 253. In case this a private complaint was filed and was taken on file by the Magistrate under section 426, Indian Penal Code, and it was posted for hearing. Eventually it was adjourned on 20th September, 1916, on which date in consequence of the absence of the complainant an order of acquittal was passed under section 247, Criminal Procedure Code. Subsequently, on 22nd September, 1916, the complainant presented a fresh complaint of the same offence based on the same facts and explained his absence on 20th September, 1916, to the satisfaction of the Magistrate. The Magistrate took cognizance of the second complaint and directed to issue the process to the accused. The learned Judges had to consider the sole question whether section 403, Criminal Procedure Code, is a bar to the Magistrate's taking cognizance of the second complaint by reason of the order of acquittal passed on 20th September, 1916. The learned Judges observed that section 403, Criminal Procedure Code, only bars the re-trial of a person who has been once tried and convicted or acquitted. The learned Judges (Ayling and Napier, JJ.) did not follow the decision in Guggilapu Paddayya of Palakot2, in Kotayya v. Venkayya, (1917) I.L.R. 40 Mad. 977: A.I.R. 1918 Mad. 212. The learned Judges observed that section 403 only bars re-trial of a person who has once been tried and convicted or acquitted and in this case it does appear that the accused were tried on the first complaint. The trial of summons case cannot be said to begin until the particulars of the offences are stated to the accused under section 242, Criminal Procedure Code, and there is nothing in the record to indicate that this was done. In fact from the Magistrate's explanation it may be safely inferred that it was not. No trial having even commenced on the first complaint, section 403 does not bar the Court from taking cognizance of second complaint. In fact from the Magistrate's explanation it may be safely inferred that it was not. No trial having even commenced on the first complaint, section 403 does not bar the Court from taking cognizance of second complaint. When the ruling in G. Paddayya of Palakot2, in which a different view of section 403 has been taken, was brought to the notice of their Lordships the learned Judges observed that with all respect they feel unable to concur in the reasoning of the learned Judge who decided that case. The learned Judges observed: “In our opinion some meaning must be attached to the word “tried” in the early part of section 403 (1). It should not be treated as mere surplusage as the learned Judge would seem to do. it would have been quite simple to word the section thus: A person who has once been 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 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 section 236 or for which he might have been convicted under section 237“. 10. The learned Judges observed that this would clearly include an acquittal under section 247 at the very outset before anything had been done in the case. But since the word”tried“has been inserted it must be given due weight. Their Lordships observed: we are unable to see that this construction renders the provisions of section 247 nugatory or that any inference can be drawn from the omission to refer to section 247 in the Explanation to section 403”. The learned Judges also observed: “The law being so clear in England and its requirements having been reproduced in the Indian Law we are satisfied that we cannot eliminate the word”tried“from the section. The accused has not been tried and the Magistrate acted in accordance with law in taking the complaint on his file.” 11. Again the correctness of the decision rendered in G. Paddayya of Palakot,1 came before a Division Bench of the same High Court in In re Dudekula Lal Sahib,2, consisting of Abdur Rahim and Napier, JJ. At this juncture it should be remembered that the decision in G. Paddayya of Palakot1, was rendered by Mr. Again the correctness of the decision rendered in G. Paddayya of Palakot,1 came before a Division Bench of the same High Court in In re Dudekula Lal Sahib,2, consisting of Abdur Rahim and Napier, JJ. At this juncture it should be remembered that the decision in G. Paddayya of Palakot1, was rendered by Mr. Justice Abdur Rahim, while Ayling, J and Napier, J. in Kotayya v. Venkayya, (1917) I.L.R. 40 Mad. 977 did not agree with the view of Abdur Rahim, J. and held that the ruling in G. Padayya of Palakot1, was not correct. But in In re Dudekula Lal Sahib, (1913) I.L.R. 34 Mad. 253 Napier, J. gave several reasons as to how he cannot agree with the view taken by Mr. Justice Abdur Rahim and as to how the reasons given by him and Ayling, J in Kotayya v. Venkayya,3 are correct. 12. In view of the difference of opinion between Abdur Rahim and Napier, JJ., the matter was referred to a third Judge, Wallis, C.J. The learned Chief Justice agreed with the view taken by Abdur Rahim, J. Wallis, C.J. observed as follows: “With reference to this case I have arrived at the same conclusion as Abdur Rahim, J. ……Now in English Law a plea of auterfois acquit or convict can only be raised…………. The reference in the latter part was clearly to summons case which deal with more trivial offences…………I agree with the conclusion arrived at by Abdur Rahim, J. that the conviction and sentence are bad in Jaw and should be set aside”. 13. In view of the majority view in In re Dudekula Lal Sahib2, the legal position regarding the order of acquittal passed under section 256 is that the acquittal of the accused under section 256 , Criminal Procedure Code, operates as bar under section 300 (1) , Criminal Procedure Code, against the second complaint against the same accused for the same offence and the acquittal order under section 256 , Criminal Procedure Code does not fall within the Explanation to section 300, Criminal Procedure Code. 14. In Natesa Naicker v. Mari Gramani, (1941) 2 MLJ. 156 : 60 L.W. 495: A.I.R. 1948 Mad. 14. In Natesa Naicker v. Mari Gramani, (1941) 2 MLJ. 156 : 60 L.W. 495: A.I.R. 1948 Mad. 45 Yahya Ali, J observed that when in a summons case the complainant does not appear, it is imperative on the part of the Magistrate to acquit the accused unless there is a proper reason for adjourning the hearing of the case. Where, therefore, an order of acquittal has been passed in confirmity with statutory duty, it must be held to be a proper and correct order and there can be no question of revising such an order merely because it would cause some hardship to the party. 15. In K. Dholabhai v. P. Ganeshbhai, (1969) Crl. L.J. 729: A.I.R. 1969 Guj. 176 the complainant was absent on the day to which the hearing of the case was posted. As the complainant was absent and his Counsel reported no instructions, the learned Magistrate passed an order under section 247, Criminal Procedure Code, acquitting the accused. Aggrieved with the said order an appeal was preferred to the High Court. The learned single Judge observed that the first part of section 247 does not give power to the Magistrate to acquit the accused, if the complainant does not appear on the date of hearing of such a case, but that order can be passed, if the learned Magistrate does not think it proper to adjourn to some other date for some reason and therefore he has to exercise his discretion in acquitting the accused if he finds no reason to adjourn the case. The discretion has to be exercised in a judicious manner and not in a manner as to cause miscarriage of justice. Even the proviso to section 247 of the Code further gives wide discretion to dispense with the personal attendance of the complainant, if he thinks or is of opinion that it was not so necessary. 16. In Kasbigar Rainagar v. State of Gujarat, (1911) I.L.R. 34 Mad. 253 a complaint was filed. But the complainant was absent on the day on which the evidence was to be recorded and so the Magistrate passed orders under section 247, Criminal Procedure Code, acquitting the accused. Therefore, the complainant once again filed a second complaint in respect of the very same offence against the same accused. 253 a complaint was filed. But the complainant was absent on the day on which the evidence was to be recorded and so the Magistrate passed orders under section 247, Criminal Procedure Code, acquitting the accused. Therefore, the complainant once again filed a second complaint in respect of the very same offence against the same accused. The learned Magistrate recorded the sworn statement and proceeded with the trial and heard the arguments and convicted the accused on 18th October, 1972. A contention was raised that a second complaint cannot be entertained by the learned Magistrate when once the first complaint was dismissed and the accused was acquitted under section 247 , Criminal Procedure Code, section 242 , Criminal Procedure Code, clearly indicates that in the trial of summons 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 his plea shall be recorded and it is not necessary to frame a formal charge. section 243, Criminal Procedure Code, further indicates that if the 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. section 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 bear the accused and take all such evidence as he produces in his defence. The provisions of section 247 of the Criminal Procedure Code were examined by the learned Judge and the learned Judge observed that the order that was passed in the previous complaint of acquitting the accused was passed as contemplated by section 247, 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 section 403 of the Criminal Procedure Code. In that view of the matter, the Magistrate in view of the provisions of section 403 of the Criminal Procedure Code was not 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. In that view of the matter, the Magistrate in view of the provisions of section 403 of the Criminal Procedure Code was not 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 his Lordship gets support from the decisions of a Division Bench of the Bombay High Court in Shankar Dattatraya Vazi v. Dattatraya Sadashiv Tendulkar, (1917) I.L.R. 40 Mad. 976: 33 MLJ. 121: A.I.R. 1918 Mad. 231. It was observed therein that 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 acquittal can be passed under section 247 in his favour on account of the absence of the complainant. The word “tried” in section 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 section 403 does not necessarily mean tried on merits. The composition of an offence under section 345 , Criminal Procedure Code, or a withdrawal of the complaint by the Public Prosecutor under section 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 section 403: the dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section.” 17. Thus the composition of an offence under section 345 , Criminal Procedure Code, or a withdrawal of the complaint under section 494 or an acquittal under section 247 , Criminal Procedure Code, is not included in the Explanation to section 403, Criminal Procedure Code. It was urged before the learned Judge that though the word “tried” may not mean trial on the merits, yet the trial must commence before an order of acquittal is passed. It was urged before the learned Judge that though the word “tried” may not mean trial on the merits, yet the trial must commence before an order of acquittal is passed. The learned Judge observed that since the Magistrate takes cognizance of an offence and an order for summons is issued, the proceedings have commenced against the accused under section 247 and it is not necessary that a summons should be served or that the accused should be present in the Court before an order of acquittal might be passed in his favour on account of the absence of the complainant. 18. The learned single Judge., Seth, J. followed this ruling of the Bombay High Court in Shankar Dattatraya Vazi v. Dattatraya Sadashiv Tendulkar, (1974) 15 Guj. L.R. 289: 1975 Crl. L.J. 963 in Kashikar Ratnagar v. State of Gujarat, (1929) 31 Bom. L.R. 795: I.L.R. 53 Bom. 693: A.I.R. 1929 Bom. 408 and held that on the day when the evidence was to be recorded if the complainant has remained absent, the order of acquittal under section 247 , Criminal Procedure Code, should be passed and that order of acquittal will not come within the Explanation of section 403 , Criminal Procedure Code, and it comes under section 403 (1), Criminal Procedure Code, and as such the second complaint is barred for the same facts against the same accused. 19. In view of the above cited rulings, it is clear that an order of acquittal bars a second complaint against the same accused for the same offence and the order of acquittal passed under section 256 , Criminal Procedure Code, does not come within the Explanation to section 300, Criminal Procedure Code, it is, therefore, clear that the complaint was rightly rejected by the learned Magistrate. 20. In the result, the revision case is dismissed. R.S.R. ----- Criminal revision dismissed.