1. This rule was issued calling upon the District Magistrate of Burdwan and on the complainant to show cause why the conviction of the petitioner and the sentence passed on him should not be set aside on the ground that a previous order of his acquittal, which had been passed under Section 247 of the Code of Criminal Procedure on the 8th August, 1922, not having been set aside by a competent authority, the Magistrate had no jurisdiction to try and convict the petitioner for the same offences in respect of which the order of acquittal had been passed.
2. The facts which have given rise to the application, on which this Rule was issued, shortly stated, are as follows : The petitioner was summoned under Sections 426 and 447 of the Indian Penal Code (both summons cases) to appear on 24th July, 1922. On that date a warrant was issued against the accused and the 8th August, 1922 was fixed for the next hearing of the case. On the 8th August the Sub-Divisional Magistrate before whom the case was pending was absent and another Magistrate, Babu S. Ghose was acting in his place and was in charge of the criminal business of the sub-division in accordance with the standing orders of the District Magistrate. When the case against the accused was put up before the last mentioned Magistrate, the complainant was found to be absent. Thereupon an order under Section 247 acquitting the accused was passed. It appears that on the same date after the order of acquittal had been passed, an application for the revival of the proceedings was presented to the Magistrate. On the 11th August, 1922, the learned Magistrate revived the proceedings against the accused which had come to an end on the 8th August. Thereafter the case was transferred to the file of another Magistrate Moulvi Bzahar Hossain, and this last mentioned Magistrate tried the accused under Sections 447 and 426 and convicted him on the 28th November, 1922, and sentenced him to pay a fine of Rs. 50 and in default to undergo a rigorous imprisonment for 6 weeks.
3. It appears from the record of the case which is now before us that on the 8th August, 1922, an order of acquittal under Section 247 was passed by Babu S. Ghose, Now that order under Section 247 was one which could only have been set aside by this Court if an application had been made for setting aside tti6 same. No such application was made to this Court and it therefore follows that no competent authority has set aside the order of acquittal which had been passed on the 8th August, 1922. Under these Circumstances, the question arises, 'Was it open to the Magistrate to pass the order for revival of the proceedings on the 11th August, 1922.' We are of opinion that the Magistrate had no jurisdiction to set aside the order of acquittal passed under Section 247 and revive the proceedings against the accused on the 11th August, 1922. The order of acquittal was in existence on the 11th August, 1922 and the order of acquittal not having been set aside by a competent authority is still in existence and it follows therefore that it operated as a bar on the 11th August, 1922, and on all subsequent dates to a fresh trial of the accused under the sections mentioned above.
4. The Rule is, therefore, made absolute. The conviction and sentence are set aside and conviction and sentence are set aside and the fines, if paid, will be refunded.