1. This is a Revision Petition against the Older of the Municipal Magistrate, Hyderabad. Vijaya Prakash, as the proprietor of Chandra Bhan Hotel, Begum Bazar, was prosecuted for breach of Rules 3 and 7 of Kawaid Darulttam but was sentenced for contravention of bye-law 8 read with Rule 11 of Kawaid Darulttam Hotel, to a fine of Re. 0-8-0 daily from 8th September, 1955 till the date of judgment by the Municipal Magistrate, Hyderabad. Several pleas were raised before the Magistrate, during the course of the proceedings, It was alleged inter alia that the Municipal Court had no jurisdiction as Vijaya Prakash happens to be a minor. The Court below observed that on a previous occasion Chandra Bhan had appeared before the Court and paid the fine without any demur, and even in the present case he is attending the Court as the guardian, and as such he would be responsible for consequences. With these observations, the learned Magistrate sentenced Vijaya Prakash as detailed above.
2. That Vijaya Prakash is a minor is apparent from the record. His guardian who is alleged to be in charge of the management of the hotel is said to have been attending the Court. The proceedings do not reveal that Vijaya Prakash himself had ever attended the Court or the Court below had questioned him under Section 242, Criminal Procedure Code, The advocate who represented the accused seems to have obtained power from the guardian Chandra Bhan in the lower Court for the signature thereon does not appear to be made by the minor himself. Even the application filed in the said Court bears the signature not of Vijaya Prakash but of Chandra Bhan, Thus the case as registered and purported to be proceeded against Vijaya Prakash as an accused was proceeded against him in absentia and he was sentenced to a fine of Rs. 10. This procedure does not accord with the provisions of the Code of Criminal Procedure.
3. In criminal cases, it is the accused and not his guardian who has to be examined under Section 342, Criminal Procedure Code. Further, the entire trial should be held in the presence of the accused unless his presence is dispensed with at his request. There is nothing to suggest that Vijaya Prakash was present on any occasion. No order of conviction and sentence could have been thus passed in his absence. When the Magistrate was called upon to try the accused for a criminal offence, it was necessary for him to adopt the procedure laid down in the Criminal Procedure Code. There is nothing to indicate that this criminal offence under a Special Act was to be tried in any manner other than that provided by the Code, Under these circumstances the whole proceedings of the Court below are tainted with illegality and the conviction cannot be sustained.
4. To ascertain whether the accused is a minor or a juvenile, the advocate representing him was directed to keep him in attendance. A boy of 9 or 10 years was brought before me on two consecutive dates as the accused Vijaya Prakash; but the learned advocate on behalf of the Municipality, in spite of being granted two adjournments, failed to seek instructions and state as to the identity of the accused. It is doubtful whether such a youngster, if he is really the accused, could be a de facto manager of the hotel and. if he was not so, whether any vicarious liability could be attached to him and further the forum selected is the proper forum. I do not think it necessary to express any opinion in this regard. As the proceedings before the Court below as discussed above in any event are vitiated, I allow the revision petition, quash the order and remand the case for retrial. The Revision is thus allowed.