1. Special leave granted.

2. In the instant case, the police had filed a challan against the appellants under Section 411 IPC. They were produced before the Court on 3-1-1994.

3. According to the appellants as the trial had not commenced for more than three years, they filed an application before the Judicial Magistrate, Ist Class where relying upon the decision of this Court in the case of Common Cause v. Union of India2 it was contended that because more than three years have elapsed and the trial had not commenced, therefore, the appellants should be discharged. Relying upon this decision, the Judicial Magistrate vide order dated 15-1-1997 held that the pendency of the case was for more than three years and it did not fall under any of the exceptions contained in the judgment of this Court and, therefore, the appellants were entitled to be discharged. Order to this effect was accordingly passed.

4. The High Court in revision referred to clarification given by this Court in the case of Common Cause v. Union of India3 and then held that as no charge had been framed by the Magistrate, therefore, the trial will not be deemed to have commenced and the appellants were not entitled to be discharged.

5. In our opinion, the High Court has fallen in error in upsetting the decision of the Magistrate. In the main case of Common Cause1 this Court held, inter alia, as follows:

“4. 2(f) Where the cases pending in criminal courts under IPC or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine, and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.”

6. In the clarificatory judgment Common Cause2 it was, inter alia, observed by this Court as follows:

“1. II(ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the accused concerned under Section 246 of the Code of Criminal Procedure, 1973.”

7. Reading the two together, it is clear that if the trial of a case for an offence which is punishable with an imprisonment up to three years has been pending for more than two years and if the trial had not commenced, then the criminal court is required to discharge and acquit the accused. In the clarificatory order, it is provided that in the warrant case like the present, the trial will be regarded as having commenced when charges are framed under Section 240 CrPC. This means that if within a period of two years charges are framed, then an accused would not be entitled to take the benefit of the above-quoted 1996 judgment and ask for his discharge. In the present case, admittedly, for a period of more than three years after the filing of the challan by the police and the appearance of the appellants in court, the charge under Section 240 CrPC has not been framed. This means that the appellants' trial had not commenced within a period of two years and, therefore, the Magistrate was right in discharging the appellants.

8. We, accordingly, allow these appeals, set aside the judgment of the High Court and restore the order of the Magistrate.