1. This rule must be made absolute. The petitioners before us were prosecuted under Rule 49(1) and (3) and Rule 54 read with Rule 124 of the Electricity Rules 1937 on the complaint of the Electric Inspector of Bengal. After several adjournments, the case was taken up on 2nd April 1941. The accused was examined under Section 242 and one prosecution witness was examined in part. The case was then adjourned to 25th April 1941 for further hearing. On 25th April 1941 the following order was recorded:
Prosecution absent. All accused acquitted under Section 247, Criminal P.C. Enter Rules 49(1) and (3) and 54 of the Electricity Rules 1937. P.Ws. discharged.
2. That same day at 6-7 P.M. an application was filed by the complainant, for revival of the case. The Magistrate issued notice on the accused persons to show cause why the case should not be revived and fixed 15th May 1941 for hearing of the ease. Thereafter, the trial Magistrate went on leave and the case came up before the Sub-Divisional Officer for orders. The Sub-Divisional Magistrate after hearing the parties came to the conclusion that he had no power to set aside the order of acquittal and directed that the application be filed. On 19th August 1941 a second application for revival of the case was made before Mr. K.C. Som, Deputy Magistrate. Ultimately, on 5th November 1941 Mr. Som held that the order of acquittal passed by Mr. Rahaman on 25th April 1941 was a nullity as it was made without jurisdiction. He therefore revived the case and issued fresh summons on the accused persons. This rule was to show cause why the order reviving the case and directing fresh summons to issue on the accused persons should not be set aside. The Crown relied on the ruling in Achambit Mandal v. Mahatab Singh ('15) 2 A.I.R. 1915 Cal. 119. In that case the order of acquittal was passed on a date which was not the date fixed for hearing of the case, and, according to the decision of this Court the order was passed without jurisdiction and was a nullity. Whatever may be said regarding orders passed on dates other than the fixed date the same argument cannot be used in a case where from the records every thing was in order and prima facie the Magistrate acted with jurisdiction. In the present case it is alleged that when the case was adjourned on 2nd April 1941 the learned Magistrate assured the complainant that the case would not be taken up on 25th April 1941 until 3 P.M. It is further alleged that by mistake it was taken up at 2 P.M. and dismissed in the absence of the complainant because the complainant was unable to attend before 3 P.M. the time fixed by the learned Magistrate. These is nothing on the record to show that there was any undertaking that the case would not be heard before 3 P.M. There is no statement of the learned Magistrate who is said to have given the undertaking that that was the undertaking actually given. Moreover, the successor-in-interest of the Magistrate who passed the order of acquittal held that he had no right to set aside that order or treat it as a nullity.
3. In our opinion, Mr. Som, Deputy Magistrate had certainly no jurisdiction to set aside the order of acquittal or to treat it as a nullity and when the order of the Sub-Divisional Officer directing that the application for revival be filed was passed on 16th June 1941 this ought to have been accepted by the complainant and by the Crown and if it was thought necessary that there should be further trial of the accused an application should have been made to this Court in revision or an appeal should have been filed by the Local Government. As no steps were taken to move this Court against the order of acquittal the learned Magistrate had no jurisdiction to resummon the accused on the original complaint. The rule is made absolute. The order of Mr. Som passed on 5th November 1941 is set aside. The accused are discharged from their bail bonds.