N.C.TALUKDAR, J. - (1.) TWO points of law, one relating to procedure and the other to merits, have been raised in this Rule obtained by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, and directed against an order dated the 9th February, 1973, passed by Shri A.K. Dutta, Sub -Divisional Judicial Magistrate, Chandernagore. Dist. Hooghly, in C.R. Case No. 793 of 1972 under Section 92 of the Factories Act, 1948 (Act LXIII of 48).
(2.) THE facts leading on to the Rule can be put in a short compass. Shri K.K. Sengupta, Inspector of Factories, Serampore filed a petition of complaint before the learned Sub -Divisional Judicial Magistrate. Chandernagore on 14.9.1972 against five accused persons, including the two accused opposite parties, stating inter alia that the complainant is the Inspector of Factories. Serampore and filed the petition of complaint in his official capacity; that during his visit to the factory known as M/s. Samnuggur Jute Factory Co. Ltd., North Mill. 26, Grand Trunk Road, P.O. and P.S. Bhadreswar, Dist. Hooghly on the 16th June, 1972, it was ascertained by him that although more than 250 workers were ordinarily employed in the factory, the drinking water supplied to them from the 1st April, 1972, was not cooled by ice or other effective method as required under Section 18(3) of the Factories Act, 1948 read with Rule 35 of the West Bengal Factories Rules, 1958. prescribed under Sub -Section (4) of Section 18 of the Factories Act, 1948; that the accused Nos. 1 -4 Gourilal Mehta, Harilal Mehta. Madhavlal Mehta and S.C. Roy are the occupiers and the accused No. 5, R.P. Jha is the Manager of the said factory; that the accused persons had committed an offence punishable under Section 92 of the Factories Act, 1948 for a contravention of Section 18(3) of the Factories Act 1948 read with Rule 35 of the West Bengal Factories Rules. 1958, prescribed under Sub -Section (4) of Section 18 of the Factories Act, 1948 and accordingly process may be issued against them. The learned Sub -Divisional Judicial Magistrate by his order of the same date issued summons on the accused persons as prayed for. On 19.12.1972 the next date fixed, arned Sub -Divisional Magistrate by his order dated the 9th February, 1973, dropped the proceedings against them and recalled the warrant of arrest. The said order has been impugned and foarned Sub -Divisional Magistrate by his order dated the 9th February, 1973, dropped the proceedings against them and recalled the warrant of arrest. The said order has been impugned and forms the subject -matter of the present Rule.
(3.) AN affidavit -in -opposition on behalf of the Opposite Party No. 2 and a supplementary affidavit on behalf of both the opposite parties were affirmed on the 30th July, 1973 and the 19th September, 1973, respectively. In paragraph 4 of the affidavit -in -opposition it has been averred that the opposite party No. 2 never was nor is a director of the jute mill referred to viz. the Samnuggar Jute Factory Company Limited (North Mill) and that it is wholly incorrect to say that he ever was a Director thereof. It was further submitted in paragraph 6 that the process was issued against the opposite party No. 2 upon a mistaken view of fact that he was one of the Directors of the Jute Mills concerned and as such in the interest of justice the proceedings should not be allowed to proceed. In the supplementary affidavit affirmed by the Secretary of Thomas Duff and Co. (India) Ltd. Agents hi India for the Samnuggur Jute Factory Co. Ltd., it was stated in paragraph 4 that there was no change of Director in the Company since 1.1.1973 and a copy of the Return filed with the Registrar of Companies in 1973 under Section 592 of the Companies Act, 1956, was annexed marked with the letter "A". The names of both the opposite parties do not find place there. It was averred in paragraph 5 that "In the application for registration of grant of renewal of licenses and notice of occupation specified in Sections 5 and 7 of the Factories Act, 1948, in respect of the said Company in the year 1971 submitted by the said Thomas Duff and Co. (India) Ltd., as Agents in India for and on behalf of the said Company. Sri S.C. Boy was, though inadvertence. wrongly shown as Director of the said Thomas Duff and Co. (India) Ltd." and in paragraph 6 it was stated that "On a similar application made in January 1973, the name of Sri S.C. Roy who was wrongly shown in the application for 1971 as a Director of Thomas Duff and Co. (India) Pvt. Ltd., was duly omitted. Copies of the said applications are annexed hereto and collectively marked 'B'." It was ultimately stated in paragraph 7 that "neither Madhavlal Mehta nor S.C. Roy was ever a Director of Samnuggur Jute Factory Company Ltd. and while Madhavlal Mehta was upto the 31st July, 1972 a director of the said Thomas Duff and Co. (India) Ltd. S.C. Roy was never a Director of the said Thomas Duff and Co. (India) Ltd.," In view of the materials disclosed as above and the submissions made in this behalf that the opposite party No. 2 never was nor is a Director of any one of the Concerns, Mr. Prasun Chandra Ghosh, Advocate, appearing on behalf of the Petitioner, did not. in his fairness, press the Rule against him and it was accordingly discharged against the said Opposite Party No. 2 by an order dated the 21st September, 1973, The Rule was thereafter directed to proceed against the other -opposite party, Madhavlal Mehta only. The first point raised by Mr.No. 2 by an order dated the 21st September, 1973, The Rule was thereafter directed to proceed against the other -opposite party, Madhavlal Mehta only. 4. The first point raised by Mr. Prasun Chandra Ghosh, Advocate (with Mr. Ramendra Nath Chakraborty, Advocate) on behalf of the petitioner relates to procedure, Mr. Ghosh submitted that there has been a non -conformance to procedure established by law under Chapter XX Criminal Procedure Code, vitiating thereby the impugned order passed by the learned Sub -Divisional Judicial Magistrate, Chandernagore. The steps of Mr. Ghosh's reasoning in this behalf are that there are no provisions in the Criminal Procedure Code for dropping proceedings in a summons procedure case; that this being a summons case, started on a complaint, under Chapter XX Criminal Procedure Code, Section 249, Criminal Procedure Code will not apply; that even if Section 249 applied, the proceedings could at best be stayed and not dropped; that the stage of Section 243, Criminal Procedure Code was already reached in the present proceedings wherein three of the co -accused were convicted and sentenced on pleading guilty; that the trial which had thus started is now to proceed under Sections 244 and 245. Criminal Procedure Code and can no longer be switched back to the stage of Section 242. Criminal Procedure Code where under the substance of the accusation is to be stated to the accused. Mr. Dilip Kr. Dutt, Advocate (with Messrs. Jaharlal Roy and Dilip Kumar Basu. Advocates) appearing on behalf of the opposite parties, joined issue and submitted that this is no really a case of "dropping" but of recalling the processes before, the trial had commenced. In this context he relied on a case reported in 27 Cal WN 651 : (25 Cri LJ 464 : AIR 1923 Calcutta 662). On a consideration of the respective submissions made and the decision cited, I hold that there is a considerable force behind the contentions of Mr. Ghosh. There cannot be any dropping of the proceedings in a summons procedure case, and the same is de hors the Code. The earlier orders passed by the learned Sub -Divisional Judicial Magistrate pinpoint that the stage under Section 242, Criminal Procedure Code was already over inasmuch as a substance of the accusation was stated and three of the co -accused pleaded guilty. The trial had thus started and is accordingly to proceed as provided for under Sections 242 and 245, Criminal Procedure Code. There cannot be any "dropping" of the proceedings at this stage. The provisions of Section 249, which do not apply to the facts and circumstances of the present case, also do riot provide for any "dropping". Mr. Dutt inter alia contended that the word "drooping" may have been inappropriately used but what was really intended by the learned Magistrate was that he was recalling the process issued and giving a quietus to the case, in view of the facts and circumstances of the case as also the interests of justice. In support of his contention. Mr. Dutta referred to the case of Lalit Mohon v. Moni Lal, reported in 27 Cal WN 651 : (25 Cri LJ 464 : AIR 1923 Calcutta 662). Mr. Justice Newbould and Mr. Justice Suhrawardy held in the facts of that case that "There is nothing in the Code which forbids the Magistrate to reconsider an order of this kind "on sufficient grounds". The facts however are quite different in that case where the trial had not started as in the present proceedings. The observations referred to above therefore do not lend assurance to Mr. Dutta's contention. The order as passed for "dropping" the proceedings is not a proper order and the contentions of Mr. Ghosh made in this behalf accordingly succeed.;