D.D.Seth, J. - (1.) This reference has been made by the learned Temporary Civil and Sessions Judge, Banda.
(2.) The facts of the case are that the Deputy Regional Marketing Officer, Banda, filed a complaint against the appellant in the court of the learned Sub-Divisional Magistrate, Baberu, district Banda, for an offence alleged to have been committed by the applicant under Section 8 of the Rice Milling Industries (Regulation) Act, 1958. The learned Sub-Divisional Magistrate, fixed July 11, 1967 for the recording of prosecution evidence but on that date neither the complaint nor any other prosecution witness nor the complainant's counsel was present and the learned Sub-Divisional Magistrate passed the following order: "The accused is presenting with his counsel. There is no one to appear on behalf of the prosecution. The complainant is absent. He is exempted from attendance but no proceedings can be taken in the absence of a counsel. Hence the present complaint is filed for want of evidence. The accused is discharged. The seized goods will be handed over to G.P."
(3.) After the learned Magistrate had passed the above order the applicant was again prosecuted for the same offence in the court of the learned Magistrate 1st class and, thereupon, an application was filed on behalf of the applicant that he could not be prosecuted over again for the same offence in view of the provisions of Section 403, Criminal Procedure Code. On that application the learned Magistrate 1st class, on October 25, 1967, passed the following order: "I have carefully heard the learned counsel for the accused and the learned A. P. P. The courts order dated July 11, 1967 reveals that the records were filed since no evidence was forthcoming. The court itself had exempted the attendance of the complainant and under the circumstances the complaint was not dismissed under Section 247 Cr.P.C Section 403 C.P.C. does not bar the proceedings on that account. The case be registered and proceedings be taken further. Explanation appended to Section 403 Cr.P C. is explicit and clear on the point Fix November 6, 1967 for evidence before charge.";