BHASKARA IYER Vs. SUBRAMONIA IYER
HIGH COURT OF KERALA
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(1.) The petitioner is the accused in C.C. 1556, 1557 1559 and 1560 of 1953 on the file of the Bench First Class Magistrate's Court, Trivandrum. He is running a restaurant within the Trivandrum Railway Station premises. He has to take a licence for the same. Besides the refreshment served in the restaurant, he is trading in Beedi, Tobacco, Lozenges, Biscuits and Matches. To vend these latter articles, he has to take separate licences under S.295 of the City Municipal Act read with Schedule IV attached to the same. He did not do so and hence he was charged by filing separate cases regarding each category of articles mentioned above. C.C. 1556 relates to selling of Lozenges, C.C. 1557 to selling of Beedi tobacco, C.C. 1559 to selling of matches and C.C. 1560 to selling of biscuits without the necessary licences. He cannot use the premises under S.295 without licences. The licence fees prescribed for the different articles is different. He has also to take separate licences for each article. He had not done so and he is being separately proceeded against. His argument was that he was to be proceeded against only by filing one case against him and not by separate cases, for his omission to take the licence for all the articles is nothing but the combination of his omission to take separate licence for each of the articles. Reliance was placed on S.71 I.P.C. which runs as follows:-- Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided. S.375 of the Municipal Act, IV of 1116 provides for punishment for contravening any of the sections or rules specified in the first column of Schedule V. In Schedule V, the entry against S.295(1) runs thus: Using a place for any of the purposes specified in Schedule IV without licence or contrary to licence. The fine which may be imposed may go up to Rs. 200.
(2.) Since each act is not separately mentioned in the schedule it was argued that there could be only one case relating to all those acts and necessarily therefore there could only be the levy of the fine. The wording is using a place for any of the purposes and not using a place for all the purposes specified in Schedule IV. A separate case for omission to take licence for each of the articles could therefore be taken. Each omission is a distinct offence. S.71 I.P.C. only regulates the limit of punishment in cases in which the greater offence is made up of two or more minor offenceS. That is not the position here and so the filing of separate cases under the circumstances mentioned above does not contravene the provisions of S.71 I.P.C. There is, therefore, no ground made out for ordering consolidation of the several cases for purposes of trial. This petition is therefore dismissed.;
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