Fazar Pramanik Vs. Emperor

criminal procedure code (act v of 1898), sections 247, 403 - penal code (act xlv of 1860), 379, 426--mischief--complainant, absence of--acquittal--revival of proceedings, legality of--theft, charge of. - 1. in this case the petitioner was originally summoned to answer a charge under section 426, indian penal code. during the pendency of that case the magistrate acquitted him under section 247, criminal procedure code, on the ground of the absence of the complainant. the complainant submitted a petition to the district magistrate who revived the complaint but directed that prosecution should proceed under section 379, indian penal code, instead of under section 426. in our opinion, this order was beyond the jurisdiction of the magistrate. having regard to the provisions of section 403, criminal procedure code, the acquittal by the magistrate on the charge under section 426, indian penal code, was a bar to the petitioner being put on his trial again on the same facts which were relied on to support the charge under section 379, indian penal code. that being so, we must hold that the proceedings from the date of the revival of the case are vitiated by want of jurisdiction and we accordingly set aside the subsequent orders of the bench of magistrates of serajganj, dated 6th june 1922 convicting the petitioner and of the district magistrate of pabna dated the 14th august 1922 directing a re-trial of this petitioner. we make the rule absolute. the fine, if paid, will be refunded.