1. In these four cases one U. K. Mitra who is the lessee of the building known as the Minerva Theatre has been prosecuted and convicted under Section 391, Calcutta Municipal Act, for keeping open a theatre without a license.
2. The first point which has been argued by the petitioner is that it is the owner of the theatre and not the lessee who is obliged to take out the license under Section 391.
3. The decision on this point depends entirely on who can be said to keep the theatre open. As to the meaning of the expression certain English decisions have been cited to me. They are of no assistance whatever. In the first place the wording of the English Act is different for the expression in the English Act is 'keep' and obviously 'keep' and ' keep open' are entirely different things. Secondly, they are in no way binding on me and so have no more value than any other opinion as to the meaning of an expression.
4. The practice of citing English decisions to interpret Indian statutes is seldom a profitable one. The expression used is keep open'. Who keeps the theatre open Obviously the lessee. Once leased to him the building is in his control and it is he who keeps it open or shuts it. Whether any theatrical performances take place in the building is a matter decided by the lessee. If the legislature had intended that it was to be the owner who should take out a license nothing would be easier than to have said plainly, that the owner should take out the! license. The section uses more general terms and makes the person keeping it open liable. The lessee is obviously a person who keeps the theatre open.
5. He is therefore liable under Section 391 to take out a license.
6. The next point urged is that though he may be made to take out a license he cannot be ordered to pay any fee for the license. Section 391 is silent about fees. See no foe can be charged.
7. Section 498 (2), Calcutta Municipal Act, makes it quite clear that the corporation may charge a fee. Then it has been argued that it is illegal to impose any sentence of imprisonment in default of payment of fine. Section 64 I. P. C, read with Section 26, General Clauses Act, make it quite clear that such imprisonment in default is legal. The next point urged is that the corporation cannot levy an annual license fee. They can only levy a license fee once and for all and that the section does not contemplate an annual license fee.
8. I do not think that the point arises at present. The petitioner has not taken out any license at all. The point may arise after the petitioner has taken out a license and he is asked to renew it at the and of some period.
9. The result is therefore that the rules must be discharged.
10. There is in those cases the same complaint that I have had to make in Rule 1261 and other connected rules. The records are untidy and slovenly and the proceedings have been allowed to drag on indefinitely.
11. No attempt is made to comply with the provisions Section 370, Civil P. C,
12. The Magistrate apparently has no control over the proceedings in his Court but the parties appeared or not as it suits their convenience. I would invite the attention of Government and the Chief Presidency Magistrate to the way business is apparently conducted in this Court.