1. This is an appeal from an order of a Municipal Magistrate convicting the appellant of an offence under Section 386 (1) (a), Calcutta Municipal Act read with Schedule 19 of the Act.
2. The charge was that the appellant con-ducted the business of electroplating or nickel plating at certain premises without the necessary permission or license from the Corporation.
3. It seems that two previous prosecutions had been brought against the appellant and in each case he had pleaded guilty and was convicted. On this occasion, however, he pleaded not guilty. He was found guilty by the learned Magistrate, convicted and sentenced to pay a fine of Rs. 25 per diem over a period of time.
4. Mr. Sudhangshu Mukherjee has taken a number of points and I shall deal with the points seriatim. He first contended that the trial was invalid by reason of the fact that the Magistrate on one day beard the case or arguments in the case in the absence of the accused person. It appears that on 19th May which was a date to which the hearing had been adjourned the accused was absent and a medical certificate was tendered with a view to showing that he was too ill to attend. The learned Magistrate did not accept this explanation and insisted on proceeding with the case.
5. Normally a criminal trial cannot proceed in the absence of the accused, but there is a special provision in the Calcutta Municipal Act, namely, Section 538 which is as follows :
'If any person summoned to appear before a Magistrate to answer a charge of an offence against this Act or against any rule or by-law made thereunder fails to appear at the time and place mentioned in the summons, the Magistrate may, if --
(a) Service of the summons is proved to his satisfaction and
(b) no sufficient cause is shown for the non-appearance of such person, hear and determine the case in his absence.'
6. It is quite clear that if the accused fails to appear at the first hearing, that is, at the time and place mentioned in the summons the Magistrate may proceed in his absence. But if the accused fails to appear at some subsequent hearing then the case does not fall within the words of Section 533, because he does not fail to appear at the time and place mentioned in the summons. It has been held by a Bench of this Court, to which I was a member, in the case of Ashutosh Roy v. Corporation of Calcutta, A. I. R. (36) 1949 Cal. 589 : (53 C. W. N. 847), that where an accused person failed to appear at an adjourned hearing of a case and the Magistrate proceeded in his absence and convicted him the conviction was bad as the case was not covered by Section 533, Calcutta Municipal Act. This case followed earlier cases of this Court: Kusum Kumari Debi v. Corporation of Calcutta : AIR1937Cal218 and Bhupendra Nath Roy v. Corporation of Calcutta : AIR1945Cal103 Quite clearly, I am bound by these authorities and therefore must hold that the learned Magistrate could not at the adjourned hearing proceed with this case in the absence of the accused and that being so the whole trial is vitiated and the conviction must be set aside.
7. Mr. Sudhangsu Mukherjee also has urged that his client committed no offence at all. Section 386 (1) (a), Calcutta Municipal Act is as follows:
'No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a license granted by the Corporation in this behalf, namely,
(a) any of the purposes specified in Schedule 19.'
8. It appears to me that the business of electroplating cannot fall within any of the items in Schedule 19 and the learned Magistrate has not found that this business falls within the ambit of Schedule 19 at all. Learned advocate for the Corporation suggested that possibly this business might fall within item (8), namely, manufacturing chemical preparations, But electropating is not the manufacture of chemical preparations It is merely covering copper or some such metal with a thin film of silver or nickel and this is done by eleotrolysis. It seems to me that this business does not fall within Schedule 19 and therefore it is not an offence to carry on a business without a licence.
9. Learned counsel for the Corporation however stated that it was wholly unnecessary to show in this case that the business fell within Schedule 19, because this was a continuation of operations for which the accused had already been convicted. He relied upon Section 488, Calcutta Municipal Act, which is in these terms :
'(1) Whoever commits any offence by
(a) contravening any provision of any of the sections, sub-sections, clauses of sections, provisos or rules of this Act mentioned in the first column of the following table, or
(b) contravening any provision of any rule made under any of the said sections, sub-sections, clauses, or provisos, or
(c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him or under any of the said sections, subsections, clauses, provisos or rules, shall be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table.
(2) Whoever, after having been convicted of any offence referred to in clauses (a), (b) or (c) of sub-s. (1), continues to commit such offence shall be punished, for each day after the first during which he continues so to offend, with fine which may extend to the amount mentioned in this behalf in the fourth column of the said table.'
10. Learned advocate for the Corporation contends that as the accused had been previously convicted the Court could go on convicting him by reason of Section 488 (2), Calcutta Municipal Act. In my view, however, if the accused had been wrongly convicted then he cannot be convicted for continuing to do the act for which he was wrongly convicted. Sub-section (2) provides 'Whoever, after having been convicted of any offence continues to commit such offence.' That, I think, obviously must mean being rightly convicted. All that one can say here is that the accused was convicted, but not for an offence under the Act. He was wrongly convicted of an offence under the Act and it appears to me that a man who has been wrongly convicted cannot be convicted thereafter for merely continuing to do that for which he was wrongly convicted. If it is shown that he was wrongly convicted, then he cannot be convicted for continuing to do that Act. It is quite clear that this business did not fall within Schedule 19, and that the appellant wrongly pleaded guilty and was wrongly convicted. He has now been advised, and it seems to me quite clear, that as he was wrongly convicted Section 488, Calcutta Municipal Act, cannot possibly cover the case. That being so the Corporation cannot get any assistance from Section 488.
11. Lastly Mr. Sudhangsu Mukherjee contended that the prosecution was barred by limitation and he relied upon Section 584, Calcutta Municipal Act Shortly that section provides that if the offence with which an accused is charged is continuous in its nature, the prosecution must be brought within three months from the date on which the commission or existence of such offence was first brought to the notice of the Corporation or the Executive Officer. Mr. Mukherjee has urged that there is here evidence that the offence was brought to the notice of the Corporation on 22nd September 1948, and indeed he was prosecuted for an offence committed on that day and succeeding days. The present prosecution was not launched until 2nd March 1949 and therefore it is urged that it was beyond three months of the date upon which the commission of this offence was brought to the notice of the Corporation or its Executive Officer. However, it appears to me that this period of limitation cannot apply where a charge could rightly be made under a section read with Section 488. Otherwise, very little scope would be given for a prosecution under Section 488 (2). It seems to me that the period of limitation in Section 834 is the period prescribed for the first prosecution. But it is not necessary to consider the point any further, because I am satisfied that the conviction cannot be maintained for the reasons already given.
12. In the result, therefore, I would allow this appeal, set aside the conviction and sentence and acquit the appellant. If the fine or any part thereof has been paid such must be refunded forthwith.