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Ganesh Chandra Khan and Sons Vs. the Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal117
AppellantGanesh Chandra Khan and Sons
RespondentThe Corporation of Calcutta
Excerpt:
- .....and its case is that since may 1931 the articles belonging to the firm had been stored at 11 neogi ghat street. the owner of the firm one ganesh chandra khan, resides at 75-b, baghbazar street, but nothing is stored there. on 2nd june 1931 the firm applied to the license officer of the calcutta corporation for a license in respect of dealing in and storing of lime at no. 11 neogi ghat street, and again applied on 5th june 1931 to the health officer, district 1, for a license as aforesaid. these applications have not yet been disposed of. but on or about 6th june 1931, a summons was left at the residential house of ganesh chandra khan. in that summons the petitioner firm was required to answer a charge made under section 386(1)(a), calcutta municipal act of 1923, for using or attempting.....
Judgment:

S.K. Ghose, J.

1. The petitioner in this Rule is a firm carrying on business in lime and its case is that since May 1931 the articles belonging to the firm had been stored at 11 Neogi Ghat Street. The owner of the firm one Ganesh Chandra Khan, resides at 75-B, Baghbazar Street, but nothing is stored there. On 2nd June 1931 the firm applied to the License Officer of the Calcutta Corporation for a license in respect of dealing in and storing of lime at No. 11 Neogi Ghat Street, and again applied on 5th June 1931 to the Health Officer, District 1, for a license as aforesaid. These applications have not yet been disposed of. But on or about 6th June 1931, a summons was left at the residential house of Ganesh Chandra Khan. In that summons the petitioner firm was required to answer a charge made under Section 386(1)(a), Calcutta Municipal Act of 1923, for using or attempting to use the premises No. 73-B, Baghbazar Street, for storing lime without license. The date of the offence was given as 2nd March 1931, but there was no mention of premises No. 11 Neogi Ghat Street. On 8th June Ganesh Chandra Khan appeared before the Municipal Magistrate. The petitioner's case is that Ganesh stated to the Magistrate the aforesaid facts with regard to the two applications for a license in respect of premises No. 11 Neogi Ghat Street. But the learned Magistrate took it to be a plea of guilty and, after recording it as such he sentenced the petitioner firm to pay a fine of Rs. 25. The petitioner firm alleges that Ganesh Chandra appeared in person and not by pleader, but that on taking a certified copy of the Magistrate's order he found that the place with regard to the offence committed was stated to be 11 Neogi Ghat Street. Thereupon the petitioner firm filed an application in this Court and obtained a Rule on grounds Nos. 1, 2, 3 and 4 of the application.

2. Now, it is quite clear from the summons, which was served on the petitioner firm and which has been produced before me, that it is addressed to Ganesh Chandra Khan and Sons, No. 73-B Bagbazar Street, to answer a charge made against the firm under Section 386(1)(a), Calcutta Municipal Act of 1923, in respect of premises 'aforesaid.' The learned Magistrates in his explanation says that by mistake in the office the place of occurrence was not specifically mentioned in the summons issued. I should have thought that such a mistake in itself would be a material irregularity which would seriously mislead an accused in a case of this nature. But even this explanation of the Magistrate is not correct. Then the learned Magistrate further says that no mention was made by the accused during the trial of any petition for a license, but that subsequent inquiry showed that the accused had filed one petition for a license to the Health Department on 5th June 1931, and further that no petition, dated 2nd June 1931, to the license officer had been found to have been submitted by the accused. This latter statement again is incorrect. The learned advocate for the petitioner has filed before me a receipt showing that an application from this firm for a license was filed before the license officer on 2nd June 1931. The learned advocate appearing for the opposite party was constrained to concede that this must be correct, but he contended that this application was for a license in respect of the year 1931-32 and not of the year 1930-31. This discrepancy in the year however was not a matter of much importance. As mentioned already it is the petitioner's case that the firm only started storing goods at premises No. 11 Neogi Ghat Street, in May 1931.

3. If he were permitted to establish, this case there would have been no occasion for applying for a license for the year 1930-31. The learned Magistrate in his explanation submits that under Section 243, Criminal P.C., no evidence was necessary after the accused had admitted the charge against him. But that section of the Code requires that the admission should be recorded as nearly as possible in the words used by the accused and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. In this case it is clear that the plea of the accused was not recorded in accordance with the aforesaid provision of the Code. Having regard to the allegation in the petition which prima facie I am not prepared to disbelieve it would be unreasonable to suppose that the petitioner actually pleaded guilty to the charge with respect to premises No. 11 Neogi Ghat Street. The Rule must therefore be made absolute on the grounds on which it was issued. The conviction of the petitioner is set aside and the fine, if paid, must be refunded.


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