AMARESH ROY, J. - (1.) THIS appeal is on behalf of the State and is directed against an order passed by the Sub -Divisional Magistrate of Midnapore (South) on 23.12.1961 in a case in which the respondent Iswar Chandra Jana was prosecuted for an alleged offence under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 on a complaint filed by the Food Inspector, Sabang, P.H. Centre in Midnapore. The allegation in substance was that accused Iswar Chandra Jana had sold, exposed and stored for sale Cocoanut oil at Khagrageriahat on 15.5.1961. A sample of the Cocoanut oil was taken and the Public Analyst found it to be adulterated and also to contain mineral oil.
(2.) THE case was being tried before the Sub -Divisional Magistrate by following a Summons Procedure under Chap. XX of the Criminal Procedure Code after cognisance was taken on 28.11.1961. On the very next date fixed in the case that is on 23.12.1961 the learned Magistrate examined the accused under Section 242 of the Criminal Procedure Code He pleaded not guilty. Instantly in the same order the Magistrate proceeded to record an order in these terms : "The place of occurrence is in some muffosil of Sabang P.S.I cannot accept that Cocoanut oil in muffosil of Bengal cannot (sic) be accepted as an article of food to which the Prevention of Food Adulteration Act, 1954 applies. Hence I struck off the case and release the accused."
(3.) AGAINST that order which tantamounts to an order of acquittal present appeal has been preferred by the Superintendent and Remembrancer of Legal Affairs for the State of West Bengal under Section 417(1) of the Criminal Procedure Code It has been contended on behalf of the appellant before us that in a trial by Summons Procedure, after the plea of the accused was taken under Section 242 of the Criminal Procedure Code and the plea was one of not guilty, it was the duty of the Magistrate to proceed to hear the complaint and take evidence in support of the prosecution. He had no jurisdiction to acquit an accused person without taking evidence in the case, far less to strike off the case at that stage. The respondent Iswar Chandra Jana has not appeared before us either in person or by any lawyer appointed by him. State appointed Mr. S.K. Palit to appear on behalf of the respondent this appeal. Mr. Palit has appeared before us and argued the case for the respondent; but the learned Advocate in his knowledge of the law could not justify the order that has been made by the Magistrate in this case. Section 241(1) of the Code clearly provides as follows : "If the magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant if any, and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in hid defence : Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court" The other Sub -Sections in that section are not relevant for the purpose of this appeal. But it has to be noticed that power to acquit has been given by Section 245(1) and the provisions there also are clear. Section 245(1) runs as follows : - "If the Magistrate upon taking the evidence referred to in Section 244 and such further evidence if any as he may, of his own motion, cause to be produced, and if he thinks fit examining the accused, finds the accused not guilty, he shall record an order of acquittal." It is astonishing to see that a First Class Magistrate who was also the Sub -Divisional Magistrate could disobey the provisions in the Code to a degree which appears loudly on the records of this case and could have made the order in the terms in which it has been made.;