JUDGMENT :- This is an appeal from an order of a Municipal Magistrate convicting the appellant of an offence under S. 386(1)(a), Calcutta Municipal Act read with Sch. 19 of the Act.

2. The charge was that the appellant conducted 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 as 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 heard 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 be 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, S. 533 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 there under 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 S. 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, AIR (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 had as the case was not covered by S. 533, Calcutta Municipal Act. This case followed earlier oases of this Court : Kusum Kumari Debi v. Corporation of Calcutta, AIR (24) 1937 Cal 218 : (38 Cr. LJ 632) and Bhupendra Nath Roy v. Corporation of Calcutta, 48 C. W. N. 630 : (AIR (32) 1945 Cal 103 : 46 Cr. LJ 480). 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 Sch. 19.

8. It appears to me that the business of electroplating cannot fall within any of the items in Sch. 19 and the learned Magistrate has not found that this business falls within the ambit of Sch. 19 at all. Learned advocate for the Corporation suggested that possibly this business might fall within item (8), namely, manufacturing chemical preparations. But electroplating is not the manufacture of chemical preparations. It is merely covering copper or some such metal with a

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