Judgment J. N. Dubey, J. 1. - This revision is directed against the order dated 7th june, 1990 of the 1st Assistant Sessions judge, Muzaffarpur discharging the opposite party No.2, Gobardhan Paswan, in S. Tr. No.53 of 1987. 2. It appears that the applicant lodged a F. I. R. at P. S. Baruraj on 6th june, 1984 against the opposite party no.2 and eight other co-accused, under sections 147, 148, 307, 323, 324 and 380, i. P. C. The police investigated the matter and submitted charge-sheet only against two persons, on the basis of which they were tried by the Sessions Judge, Muzaffarpur. After recording the statement of the applicant and P. W. Ambika Singh the Sessions Judge summoned opposite party No.2 under Sec.319, Cr. P. C. on 31st May, 1989. The opposite party no.2 filed Cr. Misc. No.10216 of 1989 in this Court which was dismissed on 28-9-1989. Thereafter the O. P. No.1 moved an application before the Court below stating that in view of the fact that the case against him was closed by the Court Martial due to nonavailability of evidence, his trial was barred by Sec.300, Cr. PC. The court below accepting the plea of opposite party No.2 discharged him on 7-6- 1990. Feeling aggrieved the applicant has filed this revision. 3. Heard the learned Counsel for the applicant and perused the record. None has appeared on behalf of the opposite party No.2 despite service. 4. Learned Counsel for the applicant contended that O. P. No.2 had filed Criminal Miscellaneous Application No.10216 of 1989 in this Court against the order of the court below summoning him under Sec.319, Cr. P. C. , specifically pleading that his trial was barred by Sec.300, Cr. PC. , which was dismissed and, as such, he could not be legally discharged on this ground. 5. I find substance in this argument of the learned Counsel. It is true that the said Criminal Miscellaneous was dismissed by this Court by a nonspeaking order yet the effect or dismissal would be that all the points raised in the application will be deemed to have been considered and rejected. This being so, the court below was not legally justified in discharging the O. P. No.2 on this ground. 6. This being so, the court below was not legally justified in discharging the O. P. No.2 on this ground. 6. The next contention of the learned Counsel for the applicant is that closure of the case before the court Martial for want of evidence was neither conviction or acquittal nor dis-charge under Sec.258, Cr. P. C. and, as such, provisions of Sec.300, Cr. P. C. had no application to this case. In order to appreciate this argument of the learned Counsel section.300, Cr. P. C. is quoted below: "persons once convicted or acquitted not to be tried for same offence - (1) 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 sub-section (1) of Sec.221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any district offence for which a separate charge might have been made against him at the former trial under subsection (1) of Sec.220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted or any offence constituted by any acts may, notwithstanding such acquittal of conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed the court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under Sec -. tion 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (5) A person discharged under Sec -. tion 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of Sec.26 of the general Clauses Act, 1897 (10 of 1897) or of Sec.188 of this Code. Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section. " 7. A plain reading of section 300, cr. P. C. would show that in order to attract the rule of autrefois three essential conditions should be satisfied, namely, (i) there must have been a trial of the accused for the offence charged against him, (ii) the trial must have been by a court of competent jurisdiction, and (iii ). there must have been a judgment or order of acquittal. In the present case, the case against the opposite party No.2 was closed before the Court Martiaf fer want of evidence without any trial. Since he was not tried by the Court Martial the question of his being convicted or acquitted does not arise. In the explanation attached to Sec.300, Cr. P. C. , it is specifically mentioned that dismissal of a complaint or discharge of the accused, is not acquittal for the purposes of this section. This being so, section 300, Cr. P. C. had absolutely no application to this case. My this view finds support from a decision of Supreme Courtj in Mohammad Safl V/s. State of West Bengal, AIR 1966 Supreme Court 69, which reads thus : "these provisions are based upon the general principle" of autrefois acquit recognised by the English Courts. The principle on 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 has now been incorporated in Art.20 of the Constitution. The defence of autrefois acquit, however, has no application where the accused person was not liable lawfully to be convicted at the first trial because the court lacked jurisdiction. This is what has been pointed out by the Court of Criminal appeal in Thomas Ewart Flower V. R. (1957) 40 Cr. App. R.182 at p.193. The defence of autrefois acquit, however, has no application where the accused person was not liable lawfully to be convicted at the first trial because the court lacked jurisdiction. This is what has been pointed out by the Court of Criminal appeal in Thomas Ewart Flower V. R. (1957) 40 Cr. App. R.182 at p.193. From the language used in S.403 (1) of the code it is clear that what can be successfully pleaded as a bar to a subsequent trial for the same offence or for an offence based on the same facts is that the accused had been (a) tried by a Court (b) of competent jurisdiction, and (c) acquitted of the offence alleged to have been com-mitted by him or an offence with which he might have been charged under Section 236 or for which he might have been convicted under Sec.237 of the Code. Mr. Mukherjee, however, says that in so far as competency of the Court is concerned it was there because the offence in question was cognizable by a Special Court and mr. Ganguly made the order of acquittal as Judge of the Special Court. The competence of a Court, however, depends not merely on the circumstance that under some law it is entitled to try a case falling in the particular category in which the offence alleged against the accused falls. In addition to this, taking cognizance of the offence is also material in this regard uinder the Code of Criminal Procedure. A court can take cognizance of an offence only if the condition requisite for initiation of proceedings before it as set out in Part v B of Chapter XV are fulfilled. If they are not fulfilled the Court does not obtain jurisdiction to try the offence. In the case before us Mr. Ganguly took the view though erroneously, that as one of the conditions requisit for taking cognizance of the offence was not satisfied he had no jurisdiction over the matter. Having come to that conclusion he had no option but to put a stop to those proceedings. It appears, however, that he felt that having already framed a charge the only manner in which he could put an end to the proceedings was by making an order of acquittal. Having come to that conclusion he had no option but to put a stop to those proceedings. It appears, however, that he felt that having already framed a charge the only manner in which he could put an end to the proceedings was by making an order of acquittal. It requires, however, no argument to say that only a Court which is competent to initiate proceedings or to carry them on can properly make an order of acquittal, at any rate, an order of acquittal which will have the effect of barring a subsequent trial upon the same facts and for the same offence. Mr. Mukherjee, however, raises two contentions on this aspect of the matter, in the first place according to him, the view taken by Mr. Ganguly that he could not have taken cognizance of the offence was erroneous as has been pointed out by this Court in Ajit Kumar palit V/s. Sfafe of West Bengal, 1963 Supp (1) SCR 953 : AIR 1963 SC 765 , and therefore, he could legally acquit the appellant. He further says that since Mr. Gan-guly had not only framed a charge against the appellant but also examined all the witnesses both for the prosecution and for the defence and recorded the examination of the appellant he had completed the trial. In the second place, he says that where a charge has been framed against an accused person in a warrant case the proceedings before the Court can end either in acquittal or in conviction and in no other way. He points out that under S.494 of the Code the public Prosecutor may with the consent of the Court withdraw before a certain stage is reached, the prosecution of any person and that the only order which the court is competent to make is to acquit the accused if the withdrawal is made after a charge has been framed. 8 The order of the court below discharging the opposite party No.2 is wholly wrong and erroneous and cannot be legally sustained. 9. In the result the revision succeeds and is allowed. The order of the court below is set aside and it is directed to proceed in the matter afresh in accordance with law and in the light of observations made above. Revision Allowed.