W.BROOME, J. - (1.) THIS criminal revision is directed against an order of a first class Magistrate of Agra dismissing a complaint under Sections 323, 504 and 506 I. P. C. on the ground that it was barred by Section 403 Criminal Procedure Code
(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 Sections 504 and 506 I.P.C. and the accused had been summoned in respect of the offence under Section 323 I.P.C. only, with the result that the case was tried as a summons case. The order of dismissal passed on 13.10.1958, therefore, was under Section 247 Criminal Procedure Code, 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 13.10.1958 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 29.10.1958 on the ground that it was barred in view of the provisions of Section 403 Criminal Procedure Code
(3.) THE contention of learned counsel for the applicant is that Section 403 Criminal Procedure Code is not applicable in the circumstances of this case and that an order of acquittal passed under Section 247 Criminal Procedure Code 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 Criminal Procedure Code 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. The only decision which learned counsel for the applicant has been able to cite in support of his contention, however, is the case of Kotayya v. Venkayya, AIR 1918 Madras 212 in which the Madras High Court held : "Section 403 only bars the retrial of a person who has once been tried and convicted or acquitted and in this case it does not appear that the accused were tried on the first complaint. 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 Criminal Procedure Code and there is nothing on the record to indicate that this was done ...No trial having even commenced on the first complaint, Section 403 does not bar the court from taking cognisance of the second complaint. In the course of their decision the learned Judges who decided this case remarked : - "In our opinion some meaning should be attached to the word "tried" in the early part of Section 403(1). It should not be treated as mere surplusage." Reliance was also placed by the learned Judge on the fact that under English law an acquittal on merits is necessary to entitle a person to plead "autrefois acquit.";