A.P.Srivastava, J. - (1.) This application in revision raises an interesting point of law which does not appear to be covered by any direct authority. Three persons Ram Nandan, Chhedi and Sankatha Singh were first tried by a Magistrate first class under the Essential Commodities Act for contravention of S.3 of the U. P. Coal Control Order, 1955. The trial was a summary one. After the trial was over it was pointed out on behalf of the accused persons that a summary trial was not permitted by the Act. The learned Magistrate conceded the force of this objection and felt that he could not at that stage restart the proceedings and try the accused in a regular manner. He, therefore, acquitted the accused persons. Subsequently they were challenged again for the same offence and this time they were going to be tried in the regular manner. They raised an objection before the Magistrate who was trying them and pleaded that as they had been formerly acquitted of the same offence, the second trial was barred by Section 403 of the Code of Criminal Procedure. The learned Magistrate, overruled this objection. They went up in revision to the Sessions Judge who upheld the view of the learned Magistrate and refused to interfere. They have come up to this Court now, and it is contended on their behalf that the previous order of acquittal bars the second trial in view of Section 403, Criminal P. C.
(2.) Section 403 of the Code will apply and bar the second trial only if the accused can show that they had been tried previously by a court of competent jurisdiction and acquitted. The contention of the learned counsel For the applicants is that the Magistrate who formerly tried them was a court of competent jurisdiction. He may have committed an irregularity of procedure in trying them summarily for an offence which was not triable in that manner but on that account the Magistrate did not cease to bo a court of competent jurisdiction, and it he recorded a verdict of acquittal Section 403 became applicable and a fresh trial must be held to be barred.
(3.) There appears to be no direct case in which this exact point was raised. Before the Sessions Judge reliance was placed on behalf of the applicants on a case reported in Emperor v. Dulla, ILR 45 All 58: (AIR 1923 All 360) (A). But that case has not been relied upon here as it appears to be clearly distinguishable. In that case the trial Magistrate had acquitted the accused because the complainant was absent on the date fixed. The complainant had filed a second complaint and it was held that that was not entertainable,;