NAGAR MAHAPALIKA Vs. A V DUBEY

JUDGEMENT

(1.) THESE are 13 connected appeals filed by the Nagar Mahapalika, Varanasi, against the order of the Magistrate dated 15-5-1973 dismissing the complaints filed by the Nagar Mahapalika, Varanasi, against the Managers of the 13 cinema houses in Varanasi, under Sections 298 and 299 of the U. P. Municipalities Act, 1916 and Section 577 of the U. P. Nagar Mahapalika Adhiniyam, 1959 as not maintainable and discharging the opposite parties.

(2.) IN all the aforesaid 13 cases giving rise to these 13 appeals the complaint by the Nagar Mahapalika, Varanasi was that the cinema houses run by the opposite parties were producing loud sound by using sound amplifying instruments and other electrical gadgets without obtaining the permission of the Nagar Mahapalika. Against this complaint preliminary objections were raised by the respective operators of the aforesaid 13 cinema houses to the effect that they were exhibiting the cinema films inside the auditorium after having obtained the necessary licence which was valid and that the Nagar Mahapalika had no authority of law to demand any fee for the use of the loudspeakers inside the auditorium of the cinema houses. In reply to the preliminary objection of the opposite parties it was contended on behalf of the Nagar Mahapalika that under the bye-laws framed under the U. P. Nagar Mahapalika Adhiniyam the Nagar Mahapalika was entitled to demand fees from the cinema operators. The trial Magistrate on a consideration of the preliminary objection and the reply given to the said objection by the Nagar Mahapalika held that the Nagar Mahapalika was not entitled to levy any fee on the cinema shows and accordingly the complaints were not maintainable. The complaints were therefore dismissed and the opposite parties were discharged. Against the aforesaid order of the Magistrate passed in the 13 cases the aforesaid 13 appeals were filed in this Court under Section 417 (3) of the Cr. P. C.

(3.) AT the hearing of these appeals a preliminary objection has been taken by Sri T. P. Asthana, learned Counsel for two of the respondents in the Appeals Nos. 2249 and 2392 of 1973 that no appeal could lie against the order of discharge passed by the Magistrate and therefore the present appeals were incompetent. The cases giving rise to these 13 appeals were initiated in 1971 and therefore these cases would be covered by the provisions as contained in the old Criminal P. C. 1898 and before the new Criminal P. C. , 1973 came into operation. Section 417 of the old Code provided for appeals against orders of acquittal passed by any Court and did not envisage orders of discharge passed by any court. Therefore, the preliminary objection of the learned Counsel Sri. T. P. Asthana is sustained and I hold that the aforesaid 13 appeals are not maintainable. However, since leave had been granted by this Court to file appeal against the order of discharge on some misapprehension it is expedient in the interest of justice to convert these appeals into revisions, and dispose them of in accordance with law.