EMPEROR Vs. S R KOPPALKAR

JUDGEMENT

(1.) THIS is an appeal by the Government of Bombay against an order made by an Honorary Presidency Magistrate acquitting the accused who was charged with a breach of Rule 7 framed under Clause (f)(i) and (g) of Sub-section (I) of Section 22 of the City of Bombay Police Act, 1902. The accused is the keeper of a restaurant of what is known as Class B character, and under the rules, to which I will refer in a moment, he is entitled to keep the place open without any license except for the period from 9-30 p. m. to 5-30 a. m. He was found to have been absent from the restaurant between 7 p. m. and 9 p. m. and is alleged thereby to have committed a breach of Rule 7 . There are three material rales which have to be considered. Rule 4 provides that no person who keeps a place of public entertainment of Class B shall keep such place open for customers between the hours of 9-30 p. m. (S. T.) and 5-30 a.m. (S. T.) without previously obtaining a license for the same from the Commissioner of Police; and Rule 7 provides that no person keeping a place of public entertainment under a license from the Commissioner of Police shall absent himself or herself therefrom during the time it is open without obtaining the previous permission of the Commissioner of Police. Now, if I had to read those two rules together and apart from other rules, I should feel no doubt that Rule 7 refers to absence during the time the place is open under the license. I should expect the license to be granted to keep the place open for the required hours between 9-30 p. m. and 5-30 a. m., in this case these hours being from 9-30 p. m. to 1 a. m., and if the license was. so framed I should feel no difficulty in saying that Rule 7 meant that the keeper of the restaurant was not to absent himself during the period covered by the license, that is from 9-30 p.m. to 1 a.m., and that Rule 7 had no application to the period not covered by the license. But then one has got to look at Rule 6, which provides that no person keeping a place of public entertainment under a license from the Commissioner of Police shall keep it open except during such hours as may be specified in his license. The effect of that rule would seem to be that if the license merely authorised the opening of the place during the prohibited hours from 9-30 p.m. to 1 a.m., the place could not be opened before 9-30 p. m. because that would not be during the hours specified in the license ; and in order to get over the difficulty created by Rule 6 it appears that licenses are framed so as to cover the whole period during which it is desired to keep the premises open. In this case accordingly the license is to keep the premises open between 5-30 in the morning and 1 a. m. in the night. If a license in that form is good, I think that Rule 7 would be broken by absence during any period covered by the license, that is the whole period during which the premises may be open. However in my opinion the contention of Mr. Dhruva, advocate for the accused, is correct that Rule 6 in so far as it in effect compels the keeper of the premises to obtain a license for hours which are not prohibited, i.e. the hours between 5-30 a. m. and 9-30 p. m. is ultra vires the Act under which the rules were made. Section 22 of the City of Bombay Police Act enables the Commissioner of Police to make rules not inconsistent with the Act, and under Sub-clause (f) (i) the rules may cover rules for keeping places of public amusement or entertainment. But then the second proviso directs that no rule under Clause. (f) shall contain any regulation requiring a license for any place of public entertainment unless such place is kept open for customers between the hours of nine at night and five in the morning. To my mind this means that the rules are not to require a license to be obtained for the non-prohibited hours, whilst the effect of Rule 6 is to insist on a person, who wants a license to keep his premises open during the prohibited hours, also obtaining a license to keep it open during the non-prohibited hours. In my view Rule 6 goes too far, and the license must be held to cover only the prohibited hours after 9-30 p. m. I think therefore it is open to us to put upon Rule 4 and 7 the construction they naturally bear, and to hold that the necessity of the keeper of the restaurant being present in the premises only applies to the period which is covered by the license. That was the view taken by the learned Magistrate. His decision was right and the appeal must be dismissed. N.J. Wadia, J.

(2.) I agree.