W. Broome, J. - (1.) THIS criminal revision is directed against an order of a first class Magistrate of Agra dismissing a complaint Under Section s. 323, 504 and 506 IPC on the ground that it was barred by Section 403 CrPC.
(2.) THE first complaint which the applicant Mst. Indra Devi had filed regarding the offences in question was dismissed by Sri R.C. Dubey, first class Magistrate, on 13 -10 -1958, because the complainant failed to appear in his court on that date. The complaint actually disclosed no offences Under Section s 504 and 506 IPC and the accused had been summoned in respect of the offence Under Section 323 IPC only, with the result that the case was tried as a summons case. The order of dismissal passed on 13 -10 -58, therefore, was Under Section 247 CrPC, and its effect was that the accused stood acquitted. The complainant had good ground for having this order of dismissal set aside, for the reason why she had failed to appear in the court was that the case had been transferred from one court to another without proper information having been given to her; but unfortunately, instead of taking steps to have the order of 13 -10 -58 quashed she merely ignored it and filed a fresh complaint against the accused on the same facts, with the result that Sri N.L. Kakkar, first class Magistrate, who was trying this second complaint, dismissed it on 29 -10 -58 on the ground that it was barred in view of the provisions of Section 403 CrPC. The contention of Learned Counsel for the applicant is that Section 403 Code of Criminal Procedure is not applicable in the circumstances of this case and that an order of acquittal passed Under Section 247 Code of Criminal Procedure without any decision being given on merits does not bar another trial on the same facts. He points out that the words used in Section 403 Code of Criminal Procedure are: "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall ... not be liable to be tried again for the same offence;" and he argues that the use of the word "tried" suggests that there must have been a regular trial, involving a decision on merits, before the first order of acquittal can operate as a bar to a subsequent trial for the same offence.
(3.) THE only decision which Learned Counsel for the applicant has been able to cite in support of his contention, however, is the case of Bezwada Kottyya and v. Konathalapalli Venkayyaa, AIR 1918 Mad. 212 in which the Madras High Court held:;