1. These two Rules had been issued on the Municipal Magistrate, Calcutta, as well as en the Chief Executive Officer of the Corporation of Calcutta, to show cause why the order convicting the petitioners under Section 317, read with Section 488, Calcutta Municipal Act, and sentencing them to pay a fine of Rs. 10 each, should not be set aside. It appears that the case against the accused was heard in their absence, and this is one of the grounds on which the rules were issued, viz., that the learned Magistrate erred in law in hearing and determining the case in the absence of the accused persons. In support of the action of the Magistrate Section 533, Calcutta Municipal Act, is referred to which states:
If any person summoned to appear before a Magistrate to answer a charge of an offence against the Municipal Act 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 (6) no 'sufficient cause is shown for the non-appearance of such person, hear and determine the case in his absence.
2. It is contended that the date of hearing having been adjourned, and inasmuch as the accused having failed to appear on the adjourned date fixed for the hearing of the case, the Magistrate was entitled to hear the accused in their absence. But I think that the terms of Section 533 cannot be extended against the accused in such a manner. It appears that the accused did attend Court at the time mentioned in the summons; and it does not appear that the Magistrate was entitled to hear the accused in their absence because they had not appeared on the subsequent date, on which the case was adjourned. In the absence of any provision to the contrary in the Calcutta Municipal Act, the provisions of the Criminal Procedure Code will apply, and therefore the Magistrate was not entitled to hear and determine the case in their absence on the subsequent date. The Rules are made absolute; the orders of the Court below are set aside and the cases sent back for re-bearing in the presence of the accused. The accused in each case must appear before the Magistrate within a week of the' service of summons, when a date will be fixed for the hearing of the case.