JUDGMENT 1. One Musa Singh is a motor lorry driver; that on the 6th March 1928 when he was driving the motor lorry "Amaya Bhulona" of his master Jung Bahadur, one Gosto Behari Chatterji was also driving another motor lorry "Bijoli" on the Midnapore-Bankura Road within the police station of Garbetta in the District of Midnapore; that the latter lorry collided with the lorry driven by Musa Singh and his lorry was badly injured. Musa Singh instituted a criminal case u/s 426, I.P.C., against the accused Gosto Behari Chatterjee before the Sub-Divisional Officer of Midnapore Sadar and the accused was duly summoned. Before the accused entered appearance in pursuance of the said summons the Sub-Inspector of Police of Barberta submitted charge sheet u/s 5, Act 8 of 1914 (Motor Vehicles Act) against both the complainant and the accused. These two cases along with the case in which Musa Singh was the complainant were transferred to the file of Babu S.N. Sarkar, Deputy Magistrate, First Class, of Midnapore Sadar; that the said learned Deputy Magistrate disposed of the two police cases on 16th May 1928 convicting Musa Singh and acquitting Gosto Behari Chatterjee. 2. After the disposal of the said two cases on the same date the same learned Deputy Magistrate wanted to proceed with the trial of ths said case u/s 426, I.P.C., the said Musa Singh apprehending that the said learned Deputy Magistrate had already formed an opinion in favour of the opposite party and as such he could not expect a fair and impartial trial at his hands filed a petition praying for an adjournment on the ground that he was going to move the higher authorities for a transfer of his case from his file and the learned Deputy Magistrate adjourned the case to 18th May 1928. 3. On the next day i.e., on 17th May 1928 Musa Singh filed a petition u/s 528, Criminal P.C., before Mr. S.C. Ghatak, the Additional District Magistrate of Midnapore for the transfer of his case from the file of the said learned Deputy Magistrate to that of any other Magistrate and the said Additional District Magistrate called for the records of the case to his file and stayed further proceedings pending in the Court of the said Deputy Magistrate on the same date i.e. on 17th May 1928. 4. 4. The complainant came to Court on 18th May 1928 and he was very much surprised to learn that his case was being called on in the Court of the said Deputy Magistrate, though it was stayed by the learned Additional District Magistrate on the previous day and the complainant at once ran to call his muktear who was engaged in some other Court and that when he came back with his muktear to the Court of the said Deputy Magistrate he was informed that his case was dismissed u/s 247, Criminal P C., owing to his absence. 5. Being aggrieved by the order of the said learned Deputy Magistrate Musa Singh moved an application before the Additional District Magistrate praying for his kind recommendation to the Hon'ble High Court for the setting aside of the order of acquittal passed by the learned Deputy Magistrate u/s 247 on 18th May 1928. 6. Musa Singh obtained a rule and the date of hearing of the said rule was fixed on 26th May 1928. 7. On 26th May 1928 the learned Additional District Magistrate disposed of the said Rule No. 23 of 1928 and his application for transfer numbered 56 of 1928 together rejecting both the petitions. Order of the lower Court 8. I have heard pleader for the petitioner and seen the records. The case being a summons case, the Magistrate's order u/s 247, Criminal P.C., (which evidently in this case was an unfortunate one) stands in the way of a re-opening of the question in view of Section 403, Criminal P.C. 9. That Section 403, Criminal P.C., is a bar to further trial of a case in which an acquittal has been ordered u/s 247, Criminal P.C., will appear from many rulings begining with olden times and that is the accepted view up to present times: see Suraiya Sastri v. Venkata Rao [1886] 2 Weir 45 Panchu Singh v. Unnor Mahomed Sheikh 4 C.W.N. 346, Kedar Nath Biswas v. Adhin Manji 7 C.W. N. 711. This is also the view taken in Guggilappu Paddyaaya, In re [1911] 34 Mad. 253 and a contrary view taken (Ayling and Napier, JJ.) in unreported case Dudekula Lal Saheb, In re [1917] 40 Mad. This is also the view taken in Guggilappu Paddyaaya, In re [1911] 34 Mad. 253 and a contrary view taken (Ayling and Napier, JJ.) in unreported case Dudekula Lal Saheb, In re [1917] 40 Mad. 976 referred u/s 429, Criminal P.C., to the Chief Justice Sir John Wallis on a point of disagreement between Abdur Rahim and Napier, JJ.: see full discussion in Dudekula Lal Saheb, In re [1917] 40 Mad. 976. It will appear from this that the expression "tried" in Section 403, Criminal P.C , affords no ground for re-opening an order u/s 247, Criminal P.C., and that there can be no further trial in cases in which acquittal has been ordered (described as "statutory acquittal") under Sections 494, 247 and 345, Criminal P.C. I think this is the latest decision on the subject, while valuable light is thrown on the situation by Guggilappu Paddyaaya, In re [1911] 34 Mad. 253 which points out that the non-mention of Section 247, Criminal P.C., in the explanation u/s 403, Criminal P.C. shows that it was not intended by anything in Section 403, Criminal P.C., to limit the force of acquittal u/s 247, Criminal P.C. 10. In my opinion there can be no further trial in this case. The application is rejected. @ORDER 11. We have examined the record and perused the explanation submitted by the Additional District Magistrate and on the facts appearing therein there cannot be any doubt that the order of acquittal passed on 18th May 1928 must be set aside and the case against Gostha Behari Chatterjee retried by a Magistrate other than the Magistrate who passed the orders in the first instance to be nominated by the District Magistrate. The rule is accordingly made absolute.