1. In this case the learned Ad-ditional District Magistrate of Mymensingh recommends that the acquittal of the opposite party be set aside and that the case in which he was acquitted be ordered for retrial. It appears that the opposite party, Radhika Mohan Ghose, was placed on his trial before an Honorary Magistrate of Kishoregunj in respect of an alleged offence under Section 501, Bengal Municipal Act. The case against him was to the effect that he had erected a building within the municipal area without having obtained the requisite permission under Section 318 of the Act. The learned Magistrate acquitted the opposite party mainly on two grounds (1) that there was no evidence to the effect that Schedule VI, Bengal Municipal Act, together with Sections 315, 317 and 329 had been applied by notification to the Kishoregunj Municipality and (2) that, in any case, the prosecution of the opposite party had been sanctioned not by the Commissioners at a meeting as contemplated by Section 332, Bengal Municipal Act, but by the Chairman alone. The learned Additional Magistrate in his letter of reference points out that the reasons given by the learn, ed Magistrate for acquitting the accused are groundless and that, in these circumstances, the acquittal must be regarded as based on a mistake of law. In the first place, the learned Additional Magistrate observes that
The Municipality by notification exercised the necessary powers under the old Municipal Act and consequently under proviso to Section 312, Sub-section (2) of the new Act continued to exercise those powers, no special notification being necessary.
In the circumstances of this particular case it was essential for the purpose of the prosecution to show that Section 318, Bengal Municipal Act, was actually in operation in the Kishore-gunj Municipality at the time when the prosecution was instituted. According to the view which has been adopted by the learned Additional Magistrate it would appear that, as a matter of record, he was satisfied that the conditions prescribed by the proviso to Section 312, Bengal Municipal Act, were operative, and, if this be a fact, it follows that no special notification under Section 312, Sub-sections (1) and (2) would be required, in this case. It would appear prima facie that the proviso to Section 312, Bengal Municipal Act, must have been overlooked by the learned Honorary Magistrate in the trial Court and from this point of view the matter will require further consideration. As regards the second point the learned Additional Magistrate points out that in fact the Commissioners had sanctioned the prosecution at a meeting on 14th March 1942. If this was the case, the requirements of Section 330 (1) (a) road with Section 382, Bengal Municipal Act, were prima facie satisfied. We, therefore, accept the Reference for the reasons set forth in the Letter of Reference, dated 2nd February 1943. The Order of acquittal dated 6th November 1942 is set aside and it is directed that the case be retried according to law by a stipen-diary Magistrate of Kishoregunj to be selected for this purpose by the District Magistrate of Mymensingh. The Reference is accordingly accepted and the Rule is made absolute.
2. I agree.