State of Rajasthan v. Saleem — 1985 DIGILAW 25 (RAJ)

J.R. CHOPRA, J.— This appeal against the judgment of Judicial Magistrate No. 3, Jodhpur dated July 16, 1977 raises a very short legal question regarding the applicability of s.300 Cr.P.C. 2. The facts leading to this appeal briefly stated are that the complainant Mohd. Ishaq was living in his sisters house situated at Subhash Chowk, Ratanada, Jodhpur for the past about 14 years. It is alleged that his brother Saleem and his son Safiq came to his house on December 21, 1975 and December 26,1975 and asked him to vacate the house. When he did not agree to their request, Saleem and Safiq gave beating to him, opened the lock of his house and ousted him from it on February 8, 1976. He lodged a report about this incident in the Police. After usual investigation, the Police filed a challan under s. 453 I.P.C. However, he also filed a private complaint regarding the same offence in the court of Judicial Magistrate No. 2, Jodhpur. The case was registered against the accused-persons under ss. 323, 427 and 451 I.P.C. After summoning of the accused - persons, the case was fixed for the evidence of the complainant on October 5, 1976. The case was registered as Private Complaint No 17 of 1976. On October 5,1976, the complainant was absent and the accused-persons alongwith their counsel were present. In the absence of the complainant, the learned Magistrate dismissed the complaint under s. 256 Cr.P.C. and acquitted the accused-persons of the offences under s. 323, 451 and 427 I.P.C. Thereafter, in the case filed on police report which was registered under . 453. I.P.C. an application was moved on behalf of the accused-persons that for the same offence they have already been acquitted by the Court of Judicial Magistrate No. 2, Jodhpur on October 5, 1976 and, therefore, this prosecution is now barred under s. 300 Cr.P.C. This application was moved at the stage when the case was fixed for prosecution evidence. The learned Magistrate held that the second trial of the accused-persons for the same incident is barred under s. 300 Cr.P.C. as they have already been acquitted. Aggrieved against this judgement, the State has preferred this appeal. 3. I have heard Mr. B.C. Bhansali, learned Public Prosecutor for the State and Mr. Suresh Kumbhatt, learned Amicus Curiae for the accused-respondent Saleem. I have also carefully gone through the record of the case. Aggrieved against this judgement, the State has preferred this appeal. 3. I have heard Mr. B.C. Bhansali, learned Public Prosecutor for the State and Mr. Suresh Kumbhatt, learned Amicus Curiae for the accused-respondent Saleem. I have also carefully gone through the record of the case. 4. It was contended by the learned Public Prosecutor that s.300 Cr.P.C. bars the second trial only when a person has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence. According to him, in this case no trial took place in the earlier proceedings but only the substance of the allegation was read over to the accused-persons. The accused persons did not plead guilty to the charges and, therefore, the case was fixed for recording of the prosecution evidence and hence the principle of autrefois acquit cannot be pressed into service. In support of his submission, he invited my attention to Venkatasubha V. Soundraraja (1) wherein the accused was discharged under s. 259 Cr.P.C. but the complainant again filed a fresh complaint. It was held that the trial is not illegal and the accused is not prejudiced by the second trial. 5. Learned Public Prosecutor further drew my attention to Harbai V, Raja Premji (2) wherein it was observed as follows : "Dismissal of complaint under s. 203 or discharge of accused under S. 259 by Magistrate is no bar for taking cognizance of a fresh complaint or a second complaint either by his successor or by any other Magistrate of the co-ordinate jurisdiction even though the order of dismissal or discharge is not set aside. The order dismissing the complaint under s. 203 Cr.P.C. or discharge of the accused under s. 259 Cr.P.C is not a final judgement and, therefore, the bar of section 403 Cr.P.C. (Old) is not applicable for entertainment of such a second complaint. No finding can be attached to an order made under s. 203 or 259 Cr.P.C." In Dhana Reddy vs. Emperor (3), it was ruled as follows: "An order dismissing a complaint or discharging an accused person does not operate as an acquittal under s. 403 and does not bar the taking cognizance of a fresh complaint of the same offence even though the order of dismissal or discharge has not been set aside by a competent authority. In State of W.B. Vs. In State of W.B. Vs. United Rubber Works Ltd.(4) a petition of complaint which was filed against the accused with respect to an offence under s. 29 read with s. 32 of the Industrial Disputes Act was not entertained by the Magistrate firstly because it was not instituted with proper sanction and secondly the learned Magistrate had no jurisdiction to try the case. He, therefore, released the accused persons from the bail bonds. It was held that the order of discharge of the accused from the bail bonds was the proper order that could have been made in the circumstances of the case and that order did not amount to an acquittal so as to bar the fresh complaint. 6. My attention was also invited to Sitaram Sao V. Sahdeva Gope (5), wherein it was held as under: "That a charge for an offence under s. 436 Penal Code could not be framed against the accused under the provisions of s. 236 Criminal P.C. nor could he be convicted for that offence under the provisions of S. 237 Criminal P.C., when the charge was framed against him was under s. 342 of the Penal Code. He might have been charged under sec. 436 Penal Code at the trial under the provisions of sub-sec. (1) of sec. 235 Criminal P.C. Hence S. 403 Criminal P.C. was no bar to the trial of the accused for an offence under s. 436 Penal Code after he had been acquitted of the charge under S. 342 Penal Code." It may be stated here that s. 403 Cr.P.C. (Old) is para materia with s. 300 of Criminal Procedure Code, 1973. On the strength of the above cited authorities, Mr. B.C. Bhansali, learned Public Prosecutor for the State vehemently submitted that even if the accused persons have been acquitted of the charges under s. 323, 451 and 427 I.P.C. by taking recourse to the provisions of s. 256 Cr.P.C., s.300 Cr.P.C. does not create any bar for the trial of the case under s. 453 I.P.C. I may state at the very outset that the above-mentioned authorities have no application to the facts and circumstances of the case in hand. Venkatasubbas case (Supra), Harbais case (Supra) & Dhana Reddys case(Supra) relate to the cases in which the accused-persons were discharged under the provisions of s.259 Cr. Venkatasubbas case (Supra), Harbais case (Supra) & Dhana Reddys case(Supra) relate to the cases in which the accused-persons were discharged under the provisions of s.259 Cr. P.C. (Old) and it has been held that the discharge of an accused or dismissal of a complaint under s. 203 Cr.P.C. (Old) does not operate as a bar to the taking of cognizance of an offence on a second complaint These are the cases in which the complaints were dismissed and the accused persons were discharged and so, these cases have no direct bearing on the facts and circumstances of the present case. In State of W.B.s, case (Supra) even the cognizance of the case was not taken by the Magistrate because he had no jurisdiction and secondly proper authorisation for prosecution was not obtained. It was therefore, held that a second complaint with proper authorisation was not barred under the provisions of s.403 Cr.P.C. (Old). 7. In Prematha Nath V. Saroj Ranjan(6), it was observed by their Lordships of the Supreme Court as follows: "An order of dismissal under s. 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into." Their Lordships of the Supreme Court in Mohd. Safi vs. State of West Bengal (7) have been pleased to lay down as follows : "The provisions of s. 403 are based upon the general principle of autrefois acquit recognised by the English Courts. The principle upon which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle is incorporated in Art. 20 of the Constitution. The principle upon which the right to plead autrefois acquit depends is that a man may not be put twice in jeopardy for the same offence. This principle is incorporated in Art. 20 of the Constitution. Where the accused person was not liable lawfully to be convicted at the first trial because the Court lacked jurisdiction, the defence of autrefois acquit has no application." Sitaram Saos case (supra) pertained to the trial of a totally different and distinct offence from the one of which the accused was acquitted in the earlier trial. It has been provided in s. 300 Cr.P.C., itself that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence may be afterwards tried with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under sub-s. (1) of s. 220. Thus, the section itself supports the authority of the Patna High Court (Sitaram Saos case Supra). In that case, there was no trial for the offence under s. 436 I.P.C, which could be tried only by a Court of Sessions and, therefore, it was held that even if the accused was acquitted of the offence under s. 342 I.P.C, he can again be prosecuted on a fresh complaint for the offence under s. 436 I.P.C. In the case on hand, the occurrence is one and the same. The complainant availed two remedies at the same time to redress his grievance against his brother and nephew. Firstly, he lodged a F.I.R. in the Police and secondly, he filed a private complaint in the Court. The crux of the offence was that he was beaten and has been ousted from his house and his belongings have been thrown away. On this allegation, the learned Judicial Magistrate registered a case under ss. 323, 451 and 427 I.P.C. However, the Police challaned the case under s. 453 I.P.C. In the case filed on a private complaint, the complainant was absent on October 5, 1976 and, therefore, the accused-persons were acquitted of the offence under ss. 323,451 and 427 I.P.C because all these three offences were required to be tried in a summons case trial as they were not punishable with an imprisonment for over a period of 2 years. 323,451 and 427 I.P.C because all these three offences were required to be tried in a summons case trial as they were not punishable with an imprisonment for over a period of 2 years. Now till this acquittal remains in force and is not set aside by a superior court, s. 300 Cr. PC. specifically bars the trial of the accused-persons on the same allegation in a different case. The cases of discharge and dismissal of complaints are to be distinguished from acquittal of an accused in summons case trial. Much stress has been laid on the fact that s. 300 Cr.P.C. provides that to press into service the principle of autrefois acquit, the accused must have been tried by a court of competent jurisdiction and after he is either convicted or acquitted, it bars the second trial. Mr. B.C. Bhansali, learned Public Prosecutor laid great emphasis on the words used in s. 300 Cr.P.C. the trial by a court of competent jurisdiction. He submitted that the use of these words are not superfluous. Simply because the complainant remained absent on a particular date before the conclusion of the trial, the acquittal recorded is not after trial. In other words, he meant to convey that the acquittal to be in force must be one which has been obtained after a full trial from a competent court. I am afraid, I cannot subscribe to this view. There was a conflict of opinion among the Judges of the Madras High Court as to when the trial in summons case begins in private complaint cases ? 8. In Kotayya vs. Venkayya (8 a Division Bench of the Madras High Court took the view 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 Cr.P.C. However, Abdul Rahim, J. in Re Dudekula Lal Sahib (9) took a different view that in summons cases the trial commences as soon as the Magistrate has taken cognizance of the matter and issued process. He observed as follows : "It seems to me that the only possible meaning we can give to the words *who has once been tried is against whom proceedings have been commenced in Court, i.e., against whom the Court has taken cognizance of an offence and issued process." In Re Dudekulalal Sahibs case (supra), Napier, J. took a different view and observed as follows : "that it is impossible to treat the words once been tried by a Court of competent jurisdiction in section 403, Cr.P.C. as surplusage, or to apply the word tried to a case where a man has not even been served with the summons. 1 have no doubt that the section is intended to reproduce what is undoubtedly the law in England namely that to plead autrefois acquit successfully the accused must have been put in peril either before the jury or the Magistrate." However, Re Dudekulalal Sahibs case (supra) was referred to Sir John Wallis, C.J , who agreed with the view of Abdul Rahim, J. and held that in summons cases the trial commences as soon as the Magistrate has taken cognizance of the matter and issued the process. 9. Re Dudekulalal Sahibs case (supra) was noticed in Shankar vs. Datta-traya (10), wherein a Division Bench of the Bombay High Court observed as follows : "Under section 247, it is not necessary that the summons should be served on the accused or that he should be present in the Court before an order of acquittal can be passed in his favour on account of the absence of the complainant. The word tried in section 403 does not necessarily mean tried 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 was further observed 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 the merits. The composition of an offence under section 345, Criminal P.C. or a withdrawal of the complaint by the public Prosecutor under section 494, Criminal P.C. would result in an acquittal of the accused even though the accused is not tried on the merits. The word tried in section 403 does not necessarily mean tried on the merits. The composition of an offence under section 345, Criminal P.C. or a withdrawal of the complaint by the public Prosecutor under section 494, Criminal P.C. would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on a subsequent complaint. ".......... 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 section 247, it is not necessary that the 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 Division Bench of the Bombay High Court also noticed a decision of the Patna High Court in Kiran Sarkar V. Emperor (11), and quoted with approval the following: "In Kiran Sarkar vs. Emperor (6), it was held by the Patna High Court that the important matter for an order under s.247 Cr.P.C, is the presence or absence of the complainant, that it is not necessary that the accused must be present or must have been summoned to the Court, and that the order under S. 247 is a final order of the acquittal which operates as bar under s. 403 of the Code of the trial of the accused for the same offence." After discussing number of rulings, Patkar, J. speaking for the Court observed of under: "The intention of the legislature is quite clear for it appears from S.205, Act 10 of 1872, that the Magistrate could only dismiss the complaint under the Criminal Procedure Code of 1872 where as under the Code of 1882 and the subsequent Codes the Magistrate was empowered to acquit the accused. The statutory acquittal was intended to operate as a final bar to further proceedings. The order of acquittal in this case has remained in force and has not been set aside. On these grounds we think that the order of acquittal passed by the Magistrate on 28th April bars a fresh trial of the accused on the same facts under s. 403. Mr. The order of acquittal in this case has remained in force and has not been set aside. On these grounds we think that the order of acquittal passed by the Magistrate on 28th April bars a fresh trial of the accused on the same facts under s. 403. Mr. B.C. Bhansali, learned Public Prosecutor drew my attention to a Full Bench decision of the Madras High Court reported in Re-Ponnuswami Goundan (12), wherein it was laid down: Where a complaint is dismissed by a Sub Divisional Magistrate under s. 203 of the Criminal Procedure Code, a Sub-Magistrate has jurisdiction to entertain in charge-sheet founded on a subsequent complaint, the order of dismissal not having been set aside." The Full Bench placed reliance on decision of its own Court in Emperor vs. Chinna Kalippa Gounden (13). In Re Ponnuswami Goundens case (supra), it was observed as under- "The sec. 403 begins by laying down that a man who has been tried for an offence and convicted or acquitted of it shall not be liable to be tried again for the same offence and it ends with the explanation that the dismissal of a complaint is not an acquittal for the purpose of the section. That however, is not all; there is in regard to an acquittal a qualification which is not to be found in the explanation. It is that an acquittal to be a bar to a second trial must still remain in force. In regard to the dismissal of a complaint, it is not stated that the order of dismissal is a bar until it is set aside." The Full Bench of the Madras High Court has, therefore, made a distinction between the dismissal of a complaint and acquittal remaining in force. If an acquittal has been recorded by a Court of competent jurisdiction whether after trial or under s. 247 Cr.P.C. (Old) and that acquittal has remained in force and is not set aside then the second complaint is barred. If an acquittal has been recorded by a Court of competent jurisdiction whether after trial or under s. 247 Cr.P.C. (Old) and that acquittal has remained in force and is not set aside then the second complaint is barred. I have already quoted two Supreme Court authorities in support of the view that a dismissal of a complaint and discharge of the accused does not bar fresh trial although cognizance on the second complaint on the same facts should be taken in very exceptional circumstances mentioned therein above but that principle cannot be applied to the cases of acquittal recorded under s. 247 Cr.P.C. (Old) till that acquittal remains in force and is not set aside by a competent superior court. 10. In Kashigar Ratanagar vs. State of Gujarat(14), two separate complaints unders. 131 read with s. 33 (1) (v)(i) Bombay Police Act in respect of same incident were filed by two Police Constables. One of the two complaints was heard first. It was a summons trial. Particulars of the offence were explained to the accused and he pleaded not guilty. On the next date when evidence was to be recorded, the complainant was absent and so the Magistrate passed the order of acquittal under s. 247 Cr.P.C. Thereafter, the second complaint was taken on bond, the deposition of the second complaint was recorded and the accused was convicted. It was held that the second trial was barred under s. 403. Although the first trial was not on merits, the order of acquittal in it did not come within the Explanation to s. 403 Cr.P.C. In Kashigar Ratanagars case (supra), J.M. Seth, J. placed reliance on Haveli Ram V. Municipal Corporation of Delhi (15) and quoted with approval the following passage- "that there are two views with regard to the meaning and scope of the word tried in sub-s. (1) of s. 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 of a criminal case and has ordered issue of process for the accused 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 s. 403 of the Code because were it the intention of the legislature to exclude acquittals under s. 247 and 248 from the scope of s. 403, it could have specifically provided for it, as is done in the explanation in the case of stopping of proceedings under s. 249 or the discharge of the accused or an entry made upon a discharge under s.273." Seth. J. however, observed as follows: "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 bifurcation of the Bombay State, ft is thus evident that the trial in cr. case 979 of 1972 was barred in view of the provisions of s. 403 Cr.P.C." The Calcutta High Court in Suchana Roy V. Paresh Kr. Ray (16) took the following view: "Dismissal of complaint by a Magistrate is quite different from an order of acquittal by a Magistrate in a summons case. The Criminal PC. has specifically incorporated the provision for acquittal under s. 256 on the ground of non-appearance of the complainant. That acquittal is good enough to constitute an acquittal under s.300. It may be noted that even a person discharged under s. 258 shall not be tried again for the same offence except with the consent of the court." Sudhamay Basu, J. in Suchana Roys case observed as follows; "This s. 300 corresponds to old s.403 of the earlier Cr.P.C. This is based on the well known principle that no mans life or liberty should be twice put in jeopardy for the same offence on the same set of facts." In Suchana Roys case, the learned Judge quoted the observations made by Rankin, C.J. with approval in Sudhindra Kumar Roy V. Emperor (17) which are as follows: "It is very difficult to say it what stage apart from the very earlier stage, trial does begin before a Magistrate. There is some ground for arguing that the moment the Magistrate takes cognizance of the offence, the trial commences.". In that case, Mr. There is some ground for arguing that the moment the Magistrate takes cognizance of the offence, the trial commences.". In that case, Mr. Pal appearing on behalf of the complainant drew the attention of the Court presided over by Sudhamay Basu, J. to a Full Bench decision of the Calcutta High Court reported in Saurendra Mohan Basu V. Suraj Ranjan Sarkar (18), wherein it was held that a fresh complaint after dismissal of the previous complaint may be entertained when there was any manifest error or manifest miscarriage of justice in the previous order or when fresh evidence is forth coming. The same view has been expressed in the decision of their lordships of the Supreme Court in Pramatha Nath V. Saroj Ranjan (supra). This submission was however repelled by the learned Judge by observing that it was a case relating to dismissal of a complaint under s. 203 and it is clearly distinguishable. It was further observed as under : "It may be pointed out that s. 203 of the new Code belongs to the group of sections under Chapter 15 which relates to complaint to Magistrate whereas s. 255 dealing with acquittal or conviction is included in a group of sections comprised in Chapter 20 of the Cr.P.C. that relates to trial of summons cases by a Magistrate. Dismissal of complaint by a Magistrate is therefore quite different from an order of acquittal by a Magistrate in a summons case. The Cr.P.C has specifically incorporated the provision for acquittal under s. 256 on the ground of non-appearance of the complainant. That acquittal is good enough to constitute an acquittal under s. 200. It may be noted further that sub. s. (5) of s. 300 which has been quoted earlier provides that even a person discharged under s. 258 shall not be tried again for the same offence except with the consent of the Court. That acquittal is good enough to constitute an acquittal under s. 200. It may be noted further that sub. s. (5) of s. 300 which has been quoted earlier provides that even a person discharged under s. 258 shall not be tried again for the same offence except with the consent of the Court. It is not necessary to deal with some other aspects of the matter which were discussed at the bar namely, what conditions a complaint being dismissed a fresh one can be instituted." In Rabindra Dhai V. Jairam Sethi (19) a learned single Judge of the Orissa High Court has held as under ; "When a court applies a wrong provision of law erroneously, it would be deemed that the order, in effect, was one under that provision of law applicable to the facts of the case. In a summons case the Code does not provide to dismiss the complaint or discharge the accused." ".......Where the complaint was dismissed after issue of summons to the accused on account of the absence of the complainant, the order would amount to one of acquittal irrespective of whether the Magistrate uses the word discharged or acquitted. Therefore, the order of discharge of the accused under s. 245 by Magistrate for the offence of the theft, as the complainant was absent on the date of the hearing, would amount to acquittal under s. 256. Thus the subsequent trial of the accused for the commission of the same offence in which conviction was recorded against him was illegal in view of s. 300". The learned Judge placed reliance in that case on a decision of the Andhra Pradesh High Court in Public Prosecutor v. Hindustan Motors Ltd (20) wherein it was held that the order of discharge under s. 245 (2) of the Code must, therefore, be read as an order of acquittal passed under s. 256 of the Code. There being no provision for revival of a case after acquittal, a Magistrate cannot set aside his own order or that of his predecessor or that of another Magistrate on the ground that acquittal was without jurisdiction. The remedy of the opposite party was to go up in appeal under s. 378(4) of the Code. In Rabindra Dhais case (supra), the learned Judge also quoted with approval the following observations which were made in Rajkumar Manisana Singh vs. Nameirakpam Angou Singh (21). The remedy of the opposite party was to go up in appeal under s. 378(4) of the Code. In Rabindra Dhais case (supra), the learned Judge also quoted with approval the following observations which were made in Rajkumar Manisana Singh vs. Nameirakpam Angou Singh (21). "that when the accused was charged for committing the offence triable as a summons case and the Magistrate passed an order of discharge as both the parties were absent, the order of discharge would amount to an order of acquittal under s. 247 of the Code (Old) and a fresh trial for the same offence would be barred by s. 403 of the Code (Old), corresponding to s. 300 of the Code." The learned Judge, therefore, held that s. 300 Cr.P.C. would bar a fresh complaint and another trial on the same facts as the word tried therein would not necessarily mean tried on merits and if the acquittal is without jurisdiction or the order of acquittal is nonest, S. 300 of the Code may not be applied. Thus, Orissa, Andhra Pradesh and Manipur High Courts have taken a view that even if the order of dismissal of a complaint or discharge of an accused is passed after the trial has commenced, that order should be deemed to be an order passed under s. 256 of the Cr.P.C and that the order of discharge or dismissal should be taken as an order of acquittal and till that order of acquittal is not set aside by a superior court in appeal, a second trial on the same facts is barred under s. 300 Cr.P.C. 11. In a latest ruling of the Gujarat High Court in Kharva Hiralal Damji V. Vichai Ratnabash (22) a learned single Judge of the Gujarat High Court also took the view that the order of dismissing the complaint would have the effect of acquittal. In that case, it was observed as under : "The word tried in s.403 does not necessarily mean tried on the merits. The composition of an offence under s. 345, Cr.P.C., or a withdrawal of the complaint by the Public Prosecutor under s. 494 Cr.P.C. would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on subsequent complaint. The composition of an offence under s. 345, Cr.P.C., or a withdrawal of the complaint by the Public Prosecutor under s. 494 Cr.P.C. would result in an acquittal of the accused even though the accused is not tried on the merits. Such an acquittal would bar the trial of the accused on the same facts on subsequent complaint. In that case, Mohamad Safis case (supra) was also discussed and it was held that it applies to only those cases where an order of acquittal is passed by a court which was not competent to try the case. It also quoted the following observations with approval from Emperor V. Dulla(23) wherein it was held: "that the provision contained in s. 403, Cr.P.C. is imperative and bars a second trial of a person who has once been acquitted on the same charges, that the section does not make any distinction between acquittals after trial and acquittals under ss. 247 345 and 494 of the Code, and that so long as an order of acquittal under s. 247 stands, s. 403 bars a second trial on the same charge, no matter whether the order of acquittal is good or bad, legal or illegal." 12. To conclude, it may safely be said that if an accused has been discharged or his complaint has been dismissed under s. 203 Cr.P.C., a fresh trial on a fresh complaint is not barred under s. 300 Cr.P.C. Even in such cases, cognizance on the second complaint should not easily be taken. It is only in very exceptional circumstances that such cognizance can be taken as observed by their Lordships of the Supreme Court in Pramatha Nath vs. Saroj Ranjan (supra) Of course, Allahabad High Court in Gur Charan V. State (24) took the view that once an accused person has been di charged or a complaint is dismissed by a competent. Magistrate in respect of a particular cause of action, he should not be harrassed in successive trials before different Magistrates in respect of the same cause of action. Magistrate in respect of a particular cause of action, he should not be harrassed in successive trials before different Magistrates in respect of the same cause of action. Where an accused has been improperly discharged, the proper remedy for the complainant is to go up in revision against the order of discharge and it is for the revisional court to decide whether the discharge is proper one or not, and in case the discharge is not justified on the material on the record, it may direct further inquiry into the matter or pass such orders as may be appropriate in the circumstances of the case. It may be stated here that Gurcharans case (supra) related to the period prior to the decision of their lordships of the Supreme Court in Paramatha Nathas case (supra). In such cases, although s. 300 Cr.P.C. does not specifically bar the trial of an accused on a second complaint but the Courts should be slow in entertaining such complaint and that too, in very exceptional circumstances. Mysore High Court in State V. Mohd. Mira (25) also took a view that though the order of discharge was not an acquittal and, therefore, the fresh case was not barred under s. 403, however, in the circumstances of the case, if the case continued after the lapse of such a long period of more than five years from the date of the event, it would not only be highly inconvenient but would also cause harassment to the accused and hence, the fresh case deserved to be dismissed. 13. From the discussion made hereinabove, the only view which can be deduced is that dismissal of a complaint in a warrants case or discharge of an accused is not a bar to the trial of the accused on a fresh complaint but entertaining of such a fresh complaints should be adhered to in very exceptional circumstances when the previous order was passed either on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly, absurd, unjust or foolish or where new facts which could not with reasonable diligence have been brought on the record in the previous proceedings have been adduced or when a distinct offence from the given facts is made out from one of which the accused has been tried and acquitted. 14. 14. So far as the acquittals under s, 256 Cr.P.C. are concerned, they can only be interfered with by a superior court. The Court which passed an order under s. 256 Cr.P.C. and acquitted the accused becomes functuous officio and it cannot of its own review that order of acquittal Such an order can only be set aside by a superior court and not by a court which recorded such an order of acquittal in a complaint case (tried as a summons case) on account of the absence of the complainant after the cognizance has once been taken and process has been issued to secure the presence of the accused. It is immaterial whether he is present or absent when the order of acquittal is recorded in his favour on account of the absence of the complainant. 15. Having considered almost all the authorities on the subject rendered by different High Courts of the country as also by their Lordships of the Supreme Court, I have no hesitation to hold that once an order of acquittal under s. 256 Cr.P.C. corresponding to s. 247 of the Old Cr.P.C, is passed and till that order of acquittal remains in force and is not set aside by a competent superior court, the order of acquittal operates as a bar to further proceedings on a second complaint based on the same facts. In the case in hand, the complainant availed of two remedies: one through the agency of the Police by lodging a F.I.R. and the other through a private complaint. Both of them were based on the same set of facts relating to the same incident. In the complaint case, the accused persons have been acquitted under s. 256 Cr.P.C. Thus, on the same facts, second trial on a police report is specifically barred under s. 3C0 Cr.P.C. 16. In the result, I find no force in this appeal and it is hereby dismissed.