ORDER This is a reference under Section 438, Code of Criminal Procedure code by the Additional Sessions Judge, Indore recommending that the conviction and sentence passed against Gotamlal Jain and one another be set aside on the ground that the prosecution and conviction of both of them is contrary to Section 53(1) of the Madhya Bharat Shops and Establishments Act, 1952. The accused were tried by the Municipal Magistrate, Indore, under Section 47 of the Madhya Bharat Shops and Establishments Act for contravention of Rule 18(2) of the Rules framed under the Act. Both of them were convicted and sentenced to pay a fine of Rs.25 each. The learned Additional Sessions Judge, relying on a decision of this Court reported in Gordhandas v. The Indore City Municipality 1957 MPLJ 84 has held that only one and not both should be prosecuted and convicted. Today we have held in Tolaram and Anr. v. Shops Inspector, Nagar Palika, Indore Criminal Reference No. 25 of 1956, that the view taken in the case of Gordhandas 1957 MPLJ 84 is correct. The conviction and sentence of both the accused must therefore be set aside. The question now is, whether this case should be sent back to the trial Magistrate for further proceedings. Shri Jain, learned Counsel for the Petitioners, has invited our attention to the fact that the sanction which was accorded for their prosecution was for contravention of Rule 18(2). That rule runs thus: Notwithstanding anything contained in Sub-rule (1), an employer may, instead of maintaining a register as provided in the said sub-rule, exhibit in his establishment, a notice specifying the daily hours to be worked by, and intervals for rest to be allowed to employees. The notice shall be in Form L and shall be exhibited not later than the closing hour on the Saturday immediately preceding the first week in which the hours of work shall be as specified in such notice. It shall continue to be exhibited so long as the hours of work specified in it are observed. It is plain enough that a contravention of this rule occurs only if a register is not maintained or a notice is not exhibited. But in this case, the notice in Form L was in fact exhibited and the Petitioners were prosecuted for not adhering to what was stated in that form. It is plain enough that a contravention of this rule occurs only if a register is not maintained or a notice is not exhibited. But in this case, the notice in Form L was in fact exhibited and the Petitioners were prosecuted for not adhering to what was stated in that form. In other words, really speaking the contravention was of Section 12 (daily and weekly hours of work) of the Act which is punishable under Section 47(c) of the Act. But the sanction which was sought was under Section 50 of the Act (fake entries by the employer) and the sanction which was actually accorded was for contravention of Rule 18(2). The prosecution case was that the accused persons bad not filed in Form L, the hours of work of Surajmal employee and that Surajmal was actually found working at 10.35 a.m. Whether the acts for which the accused were prosecuted fell within Section 50 of the Act or Section 12 of it, no sanction was accorded under either of these provisions. The learned Deputy Government Advocate concedes this position. It will therefore be futile to send back this case to the trial Magistrate. This reference is therefore accepted and the conviction and sentence in respect of each of the two accused are set aside.