M.N. Shukla, J. - (1.) THE Applicants were convicted by the Additional City Magistrate, Kanpur, of an offence Under Section 35 of the UP Shops and Commercial Establishments Act, 1962 and were sentenced to pay a fine of Rs. 75/ - each. In default of payment of fine they were directed to undergo simple imprisonment for seven days. They went up in revision before the Civil and Sessions Judge, Kanpur, who affirmed their conviction and sentence. Hence, this revision.
(2.) ACCORDING to the prosecution the Applicants were found by the Labour Inspector to have kept their shop open and conducting business on 28 -8 -1966 which was a weekly closed day under the UP Shops and Commercial Establishments Act, 1962. A bogus purchaser was sent to the Applicant's shop and the Applicants bargained the price of a Hammer Master Thermos with the said purchaser. On these facts the Labour Inspector sent a complaint against the Applicant to the City Magistrate, Kanpur. The complaint gave rise to the present prosecution of the Applicants. One of the grounds taken in the memo of revision is that the provisions of the Shops and Commercial Establishment Act, 1952, are ultra vires of the Constitution. The ground of attack seems to be that commercial shops exclusively or mainly dealing in meals, refreshment, newspapers, periodicals, medical and surgical appliances, vegetables and sweetmeat and all those items mentioned in Schedule II of the Act are exempted from the operation of Sections 5 and 8 of the Act. This was discriminatory and violated Articles 14 and 19(1)(g) of the Constitution. A perusal of Schedule II of the Act would indicate that the shops mentioned therein are concerned with the bare necessities of life and are on that account exempted from the operation of the Act. There is, thus, a rational basis for classification and those shops constitute a class by themselves. It cannot, therefore, for this reason be said that there was a discrimination in the Act, I am not inclined to hold that the provisions of the UP Shops and Commercial Establishments Act are ultra vires of the Constitution. There is no infringement of Article 19(1)(g) of the Constitution either, as the learned Counsel for the Applicants has not been able to show as to how the provisions of Article 19(1)(g) of the Constitution have been violated in the present case. It was open to the Legislature to impose reasonable restriction in the matter of trade and the limits envisaged by the Constitution have not been transgressed by enacting the UP Shops and Commercial Establishments Act.
(3.) IT was then contended that the Magistrate First Class who tried the case had no jurisdiction to do so. Reliance was placed on Section 29 Code of Criminal Procedure and it was submitted that where no court was mentioned in a particular statute under which a prosecution had to be launched, the case could be tried only by the High Court or by any court constituted under the Code and indicated in the 8th Column of Schedule II. Section 29 of the Code reads as follows: Offences under (other laws -(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. (2) when no Court is so mentioned, it maybe tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable. The above argument of the learned Counsel for the Applicants is wholly fallacious. Section 29 of the Code would be attracted only if any particular court were specified in the UP Shops and Commercial Establishments Act. Section 36(2) of the UP Shops and Commercial Establishments Act (UP Dookan Aur Vanijya Adhisthan Adhiniyam ) merely contains a prohibition that no court inferior to that of a Magistrate of the Second Class shall try any offence under the Act or the rules made thereunder. Thus, the general provisions of the Code of Criminal Procedure are applicable to the trial of an offence under the Adhiniyam and Section 29 Code of Criminal Procedure is not applicable to the facts of the case at all. The case was rightly tried by the Magistrate First Class who had jurisdiction to do so.;