ORDER T.V. Nalawade, J. 1. The first proceeding is filed against the judgment and order of Criminal Revision Application No. 108/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 207/1997. The second proceeding is filed against the judgment and order of Criminal Revision Application No. 111/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 211/1997. The third proceeding is filed against the judgment and order of Criminal Revision Application No. 110/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 210/1997. The fourth proceeding is filed against the judgment and order of Criminal Revision Application No. 113/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 213/ 1997 and the last proceeding against the judgment and order of Criminal Revision Application No. 112/2003 and this revision was filed by the present respondent No. 2 against the order made by the learned Judicial Magistrate, First Class, Jalgaon in S.C.C. No. 212/ 1997. All the cases were filed by respondent No. 2 for offences punishable under section 138 of the Negotiable Instruments Act and Section 420of Indian Penal Code. These private complaints were dismissed by the learned Judicial Magistrate, First Class, under section 256 of the Code of Criminal Procedure, 1973 and the order of dismissal was challenged in the Sessions Court by filing aforesaid criminal revision applications. Learned Additional Sessions Judge has set aside the orders of dismissal and has restored the matters. Heard learned counsel for the petitioner. Learned Additional Public Prosecutor is also heard. Though respondent No. 2, original complainant, was served she did not appear. 2. The orders made, copy of which is on the record, shows that initially process was issued in private complaint for offence punishable under section 138 of the Negotiable Instruments Act. As there was no process issued for offence under section 420 of the Indian Penal Code, revision petitions were filed by the original complainant and those revision applications were allowed. The orders made, copy of which is on the record, shows that initially process was issued in private complaint for offence punishable under section 138 of the Negotiable Instruments Act. As there was no process issued for offence under section 420 of the Indian Penal Code, revision petitions were filed by the original complainant and those revision applications were allowed. Then in the year 1998 the process was issued for offence punishable under section 420, IPC also in all the private complaints. Though the matters were still described as summons cases, the cases were actually warrant cases. These complaints came to be dismissed due to absence of complainant on 19-12-2002 under section 256 of the Code of Criminal Procedure, 1973 (for short, "the Code"). 3. The stage of the matter was evidence before charge. Learned counsel for the petitioner submitted that such order is possible in law and there is nothing wrong in the order of acquittal made by the learned Judicial Magistrate. It is surprising that all the criminal revision applications were decided on 17-12-2003, the matters were restored accordingly but the present proceedings came to be filed on 10-10-2012. This Court (presided over by other Hon'ble Judge) gave interim relief and stay was given to the decision of the Sessions Court by order dated 16-10-2012. It appears that there is service of notice of the proceeding on respondent No. 2, original complainant but after 19-12-2012 nobody got circulation in the matters and the proceedings were lying in the Department. Only due to specific order given by this Court the matters were listed for admission purpose and they were heard. 4. The main contention of the learned counsel for the petitioner is that due to order of the Judicial Magistrate made under section 256 of the Code it needs to be presumed that the accused is acquitted and so the revision was not tenable in Sessions Court. The learned counsel has placed reliance on following reported cases :- (i) 2014 ALL MR (Cri) 991 (Mohd. Azim Sheikh v. Mehamuda). The facts of this case are totally different. The issue was of tenability of appeal against acquittal given in complaint case. (ii) AIR 1954 Bombay 239 (Husein Miya v. Chandubhai). In this case altogether different point was raised, about power and jurisdiction of Civil Court to set aside order of Mamalatdar made under the Bombay Tenancy Act. (iii) 1997 Bom. The facts of this case are totally different. The issue was of tenability of appeal against acquittal given in complaint case. (ii) AIR 1954 Bombay 239 (Husein Miya v. Chandubhai). In this case altogether different point was raised, about power and jurisdiction of Civil Court to set aside order of Mamalatdar made under the Bombay Tenancy Act. (iii) 1997 Bom. C.R. (Cri) 440 (Rahemat Khan v. State of Maharashtra) (Bombay High Court). The facts of this case were altogether different. (iv) AIR 2013 SC 395 (Subhash Chand v. State) (Delhi Administration). In this case, complaint for offence under the Prevention of Food Adulteration Act, 1954 ended in acquittal after trial. It is held that appeal lies under section 378(4) of the Code to High Court. (v) 2009 ALL MR (Cri) 804 (Gajanan Chopade v. Mahatma Jyotirao Phule Gramin Bigarsheti Sahakari Patsanstha) (Bombay High Court -Division Bench). In this case complaint filed under section 138 of the Negotiable Instruments Act was dismissed under section 256 of the Code. It is held that appeal lies under section 378(4) of the Code. (vi) 2006 ALL MR (Cri) 1138 (Om Gayatri v. State of Maharashtra) (Aurangabad Bench). In this case the complaint was dismissed under section 256 of the Code. It is held that appeal lies under section 378 of the Code against the said order. (vii) 2008 Cri.L.J. 2123 (Vinaykumar v. Ramesh) (Aurangabad Bench). In a case filed under section 138 of the Negotiable Instruments Act, order under section 256 of the code was passed. It is held that appeal lies under section 378 of the Code and application under section 482 of the Code was not entertained. Similar was a case before the Nagpur Bench in Criminal application No. 129 of 2011 decided on 28-7-2011 and also before Aurangabad Bench in a case reported as 2012 Bom. C.R. (Cri) 768 (Shantaram v. Dipak). (viii) 2013 ALL MR (Cri) 2713 (Kalpana v. The State of Maharashtra) (Aurangabad Bench). In this case also similar view is taken as is taken. (ix) 2012 Bom. C.R. (Cri) 707 (Kasabai v. Chandrabhagabai) (Aurangabad Bench). In this case appeal was filed against order of acquittal in a private complaint filed for offence under sections 447, 379, 427 etc. of the Indian Penal Code by dismissing the complaint for default. This court held that the acquittal was probably under section 256 of the Code. (ix) 2012 Bom. C.R. (Cri) 707 (Kasabai v. Chandrabhagabai) (Aurangabad Bench). In this case appeal was filed against order of acquittal in a private complaint filed for offence under sections 447, 379, 427 etc. of the Indian Penal Code by dismissing the complaint for default. This court held that the acquittal was probably under section 256 of the Code. When discharge application was filed, acquittal order was given but no section of the Code was mentioned. It is held that the acquittal was not on merit and so to give opportunity to complainant the order was set aside. In this case point of tenability of criminal revision was not discussed and decided. (x) 2012 Bom. C.R. (Cri) 671 (Angad v. Kishan) (Aurangabad Bench). In an appeal filed against order of acquittal given in private complaint filed for offence under section138 of the N.I. Act and section 420 IPC by dismissing the complaint under section 256 of the Code, point of tenability of revision was not considered and decided. (xi) JT 2002 (Suppl 1) SC 551 (Bhargav v. State of Maharashtra). Point involved was not about tenability of revision. Decision was given by forum having no jurisdiction and so the Apex Court set it aside by exercising its power. 5. For considering and deciding the aforesaid contention made by the learned counsel for the petitioner, provisions of Sections 397 and 401 of the Code need to be seen. Powers mentioned in Sections 397 and 401 are available both to Sessions Court and High Court and the Sessions Court can exercise the powers which can be used under section 401 in view of the provision of Section 399 of the Code. The provision of section 401(4) of the Code shows that there is prohibition to entertain revision at the instance of party who could have appealed when such appeal was available but the party has filed revision. 6. Provision of Section 397 of the Code shows that the Sessions Court has the power to consider and decide the correctness, legality or propriety of any finding, sentence or order and there is also power to find out as to regularity of any proceeding of inferior Court. 7. Section 378(4) gives power to High Court to grant special leave to the complainant to file appeal in High Court against order of acquittal given in private complaint. 7. Section 378(4) gives power to High Court to grant special leave to the complainant to file appeal in High Court against order of acquittal given in private complaint. Thus, it can be said that on one hand in view of provision of section 397 of the Code the finding of acquittal can be considered by the Sessions Court and High Court in revision but on the other hand in view of provision section 401(4) of the Code there is bar of revision if the order of acquittal is given in private complaint. 8. In the present matter we have to go with the presumption that the learned Magistrate presumed that it is summons case as it was described as summons case and he used power under section 256 of the Code. It is necessary to find out as to whether in the case of dismissal of private complaint in which process has been issued for offence under section138 of the Negotiable Instruments Act and section 420 of the IPC the dismissal order amounts to acquittal or it amounts to discharge and whether there was power to learned Judicial Magistrate to give acquittal in warrant cases by dismissing the private complaint. 9. In the Code, criminal cases are classified in two classes viz. summons case and warrant case for trial purpose. Separate provisions are made and separate chapters are given in the Code for the trial of these classes of cases. Warrant case is defined in Section 2(x) and summons case is defined in Section 2(w) and the definitions are as under :- "2. Definitions.--In this Code, unless the context otherwise requires,-- (w) "summons-case" means a case relating to an offence, and not being a warrant-case. (x) "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years." 10. When in one case one offence is triable as warrant case and other offence is triable as summons case and they are in respect of the same incident, the trial of the case needs to be conducted as if it is a warrant case for all offences. Section 259 of the Code gives power to Magistrate to try summons case as warrant case but no power is given to the Judicial Magistrate to convert warrant case to summons case. Section 259 of the Code gives power to Magistrate to try summons case as warrant case but no power is given to the Judicial Magistrate to convert warrant case to summons case. Thus in the present case the Magistrate has committed error in treating the warrant case as summons case and has passed the order like one under section 256 of the Code. Such illegality is not curable under section 465 of the Code, as the illegality goes to the root of the matter. 11. Different procedure is given to challenge the discharge of accused and the rights of the complainant are of different nature when discharge is given to the accused. He can take steps against accused even like filing of another complaint if he has more material than that was mentioned in the previous complaint. However, when there is order of acquittal, accused gets some right and when there is acquittal in respect of one offence in his favour no new case in respect of the same offence can be filed against him in view of the provision of Section 300 of the Code. 12. In view of the aforesaid position of law, the Judicial Magistrate needs to use correct provision for dismissal of the complaint. Only summons case filed on private complaint can be dismissed by order under section 256 of the Code but warrant case cannot be dismissed under section 256 of the Code. Warrant case can be dismissed under section 249 of the Code provided that offence in the case falls under the categories mentioned in section 249of the Code. Further dismissal of private complaint under section 249 of the Code gives discharge to the accused and not acquittal. 13. It is settled law that discharge terminates the proceeding filed against the accused and revision lies against such order. When the Magistrate dismisses such a warrant case without trying accused it needs to be presumed that he has given discharge as he has no jurisdiction to give acquittal in view of the aforesaid provisions. Though the learned Judicial Magistrate has made order of acquittal by taking recourse under section 256 of the Code, it is implied discharge of the accused in the warrant case and so such order is revisable. Though the learned Judicial Magistrate has made order of acquittal by taking recourse under section 256 of the Code, it is implied discharge of the accused in the warrant case and so such order is revisable. This Court holds that the Judicial Magistrate had no jurisdiction to acquit the accused by dismissing the aforesaid complaints and so the orders which were challenged were revisable. No other point was argued by the learned counsel for the petitioner. There are no merits in the proceeding. 14. In the result, all the petitions are dismissed. Interim relief stands vacated. The prayer for continuation of the interim relief is rejected.