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 healing 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, Maulvi Ezahar 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 six weeks.
3. It appears from the record of the case which is now before us that on the 8th August 3922, 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 the 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 11th nth 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 the fines, if paid, will be refunded.