Debabrata Mookerjee, J.
1. This is a Rule to show cause why a certain order of acquittal made under Section 245 of the Code of Criminal Procedure should not be set aside or why such other or further order or orders made as to this Court may seem fit and proper.
2. For the purposes of this Rule it is not necessary to set out the facts. There was an information lodged with the police by the complainant. Upon investigation the police submitted a chargesheet and copies of police papers were made available in due course to the accused. The Magistrate before whom the accused persons were tried made an order on 25th June, 1956, which is now complained of. It appears that on that day although the complainant was present no prosecution witnesses were present. The accused opposite party then represented to the Magistrate that if the police papers were looked into and examined, it would appear clear that there was no case against the opposite party. The learned Magistrate acceded to the request, looked into the police papers and straightway made an order under Section 245 of the Code of Criminal Procedure acquitting the accused of the charges against them.
3. It is contended before me that this order under Section 245 of the Code of Criminal Procedure is bad in law. I think there is substance in this contention. In a trial of a summons case under Chapter XX of the Code of Criminal Procedure, the Magistrate has to follow a prescribed procedure. When an accused appears or is brought before the Magistrate the particulars of the offence are required to be stated to him, and he is to be asked if he has any cause to show why he should not be convicted. If the accused admits having committed the offence, his admission shall be recorded and he may be convicted straightway by the Magistrate, If the Magistrate does not choose to convict him on his plea, he shall underSection 244 of the Code of Criminal Procedure hear the complainant and take such evidence as may be adduced in support of his case. The Magistrate has also to hear the accused and take such evidence as he may choose to adduce in his defence. It is only then that Section 245 is reached when the Magistrate is required to record an order of acquittal under the section if he is persuaded that the accused is not guilty of the accusations made against him. If, on the other hand, he finds on the evidence that he is guilty of the offence charged, he shall pass sentence upon him according to law. It is not necessary to refer to other sections appearing in that Chapter.
4. It is thus reasonably clear that before an order of acquittal can be made under Section 245 of the Code of Criminal Procedure evidence has to be heard. He cannot without hearing the evidence pass an order straightway under Section 245. There may be other types of acquittal in summons cases, e.g., when the complainant fails to be present upon a day appointed for the hearing of the case, when the Magistrate may instead of adjourning the case acquit the accused. But that is not the case here. If the acquittal under Section 245 of the Code is to be held a good acquittal, it must be based upon evidence which the Magistrate has to hear under Section 244 of the Code. In this case, there was no evidence whatever produced at the Trial. All that the Magistrate did was that he looked into the police papers and framed his own opinion about the merits of the matter. This he was certainly forbidden io do. The police papers cannot possibly be put to the use to which they have been put by the Magistrate. They cannot, in spite of recent amendments of the Code take the place of evidence. The order of acquittal must in the circumstances be set aside.
5. This Rule is accordingly made absolute and the accused opposite party are directed to be re-tried in accordance with law.