S.B. Sen, J.
1. This reference arises out of a prosecution of the applicants for a breach of the provisions of Rule 65(7) of the Rules framed under Section 26 of the M.B. Agricultural Produce Markets Act No. 17 of 1952.
2. The applicants carried on trade in cotton, groundnut, cottonseeds and other agricultural products within the Kukshi Tehsil during the year 1.4.58 to 31.3.59. The Act mentioned above requires under Rule 65(1) a license to be taken by a person carrying on any business as a trader in agricultural produce, if it is carried on in any market area. The market area has been defined under the Act wss declared under Section 4. Kukshi Tehsil was declared as a market area under Government Notification No. 2242/13-C/516/54 dated 9.5.55 published in the M.B. Gazette Part I B dated 16.6.55.
3. The prosecution allegation is that the applicants carried on business during the above mentioned period without taking a license as required under the Act.
4. The applicants were examined by the Magistrate under Section 242 Cri. Pro. Code. Excepting Birdichand tile two other applicants admitted that they were no doubt carrying on business in the Tehsil without license but they denied the commission of the offence on the ground that carrying on business in Tehsil area outside Kukshi proper did not amount to an offence. Their place of business was Nisarpur. Applicant Birdichand denied even the carrying on of business. The Magistrate thereupon proceeded with the case and recorded the prosecution evidence. The evidence was led only to show that the market area coincided with the whole of the Tehsil and not merely Kukshi proper. According to the prosecution, Notification, referred to, made the whole Tehsil including Nisarpur as market area. But there was no evidence led whether the applicants were doing the business. The Magistrate relied on the reply given by the applicants under Section 242 so far as the carrying of the business is concerned and convicted them.
5. I may mention here that the Magistrate has over-looked one thing that Birdichand never admitted that he had carried on business. His conviction therefore cannot at all stand.
6. As regards convictions of the other applicants, on a revision being made to the learned Sessions Judge, he has referred the case for acquittal of all the applicants on the ground that the statements of the accused under Section 242, Cri. Pro. Code cannot be taken into account after the prosecution has led evidence for filling up the lacuna of the prosecution. He has however rejected the other contentions of the applicants viz., that the notification did not include the whole of Tehsil area. As I am accepting the reference I do not feel incline to discuss other point raised before the Sessions Court.
7. In the trial of summons cases if the accused pleads guilty he may be convicted on that plea, though it is not incumbent on the Magistrate to convict him and he can proceed to take evidence on behalf of the prosecution. To convict a person on admission of his guilt is discretionary. Therefore the Magistrate is not bound to convict him even if there is a plea of guilty. If there is no plea of guilty then he is bound to proceed to take evidence. Therefore it is clear that the Magistrate may take evidence in both the cases viz., when there is a plea of guilty and when there is not. But once he decided to take the evidence both the cases are to be treated in the same manner. If after recording evidence he finds that there is a difficulty in convicting the accused ho cannot fall back on the statement of the accused taking that to be plea of guilty.
8. There is a distinction between Section 243 and 342, Cri. Pro. Code. The legislature has given some evidentiary value to the statement made under Section 342, Under Sub-section (3) of Section 342 it has been specifically stated that the answers given by the accused may be taken into consideration in such enquiry or trial, whereas so far as statement under Section 242 is concerned the court can act upon it if it is an admission. If the reply of the accused Under Section 242 is taken as a basis for conviction it must be taken as a whole and not merely a part of it. The only point to be seen is a statement under Section 242, Cri. Pro. Code is whether he pleads guilty; In denying the guilt he may put up any defence right or wrong; but the prosecution cannot after showing that the defence was wrong, take advantage of the other portion of his statement fitting in for conviction. The Magistrate could have taken the statement as a whole and convicted him if the statement amounted to an admission of guilt, though he was not bound to do so. He has never taken the statement as an admission of the guilt, otherwise he would not have proceeded to take evidence. Therefore the statement which the accused has made Under Section 242, Cri.P.Code in answer to the sub' stance of the charge cannot be relied on when the prosecution failed to establish any guilt from the evidence adduced.
9. The reference is therefore accepted.
10. The same point is involved in Criminal Revisions 113, 114, 115 and 123 of 1960 in which under similar circumstances the learned Sessions Judge has made these references, This order will govern those references also.