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2016 DIGILAW 332 (CAL)

Ghosh & Basu v. State of West Bengal

2016-04-07

SANKAR ACHARYYA

body2016
JUDGMENT : Sankar Acharyya, J. 1. Heard learned Counsel for both the parties. 2. Perused the application under Section 482 of the Code of Criminal Procedure and its annexures. Also perused the supplementary affidavit filed in this case by the petitioners. 3. This case has been filed by the petitioners challenging the issue of summons upon them from the 10th Court of learned Metropolitan Magistrate, Calcutta under the provisions of West Bengal Shops and Establishments Act, 1963. Petitioners have challenged applicability of the said Act in connection with their Chartered Accountant Firm. 4. At the time of hearing, Mr. Sharma, learned Counsel appearing for the State fairly submits that the provisions of West Bengal Shops and Establishments Act, 1963 do not apply to a Chartered Accountant Firm and therefore, the prayer of the petitioners may be considered for quashing the proceeding in the Court below favourably under Section 482 of the Code of Criminal Procedure. 5. Having gone through the copy of summons and copy of complaint filed in the Court below and considering the contentions of the petitioners, I like to consider as to whether a Chartered Accountant Firm comes within the definitions of shop or establishment according to the West Bengal Shops and Establishments Act, 1963. In Section 2 sub-section 5 of the West Bengal Shops and Establishments Act, 1963 "establishment" has been defined as a commercial establishment or an establishment for public entertainment or amusement. 6. In my opinion, said definition cannot attract a Chartered Accountant Firm. “Under sub-section 13 of Section 2 "shop" means any premises used wholly or in part for the sale of services to customers or for the wholesale or retail sale of commodities or articles, either for cash or on credit, and includes any offices, store-rooms, god owns or warehouses, whether in the same premises or elsewhere, used in connection with such sale or with the storage of commodities or articles for the purpose of such sale and also includes such other class or classes of premises as the State Government may, after taking into consideration the nature of the work carried on there, by notification declare to be shops for the purposes of this Act, but does not include an establishment. Explanation.–If any doubt arises as to whether any premises are a shop or a commercial establishment or an establishment for public entertainment or amusement, the question shall be referred to the State Government by the registering authority, suo motu or on an application, and the decision of the State Government thereon shall be final." 7. In my opinion, workshop of Chartered Accountant Firm does not come within the definition of shop. The activities of Chartered Accountant cannot be interpreted as sale of services to customers. 8. Considering all the above aspect, I find substance in this application under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the Complaint Case No. C. 1827 of 2009 pending before the learned 10th Metropolitan Magistrate, Calcutta with allegations under Sections 5(3), 16(3), 17(1) and 18 of the West Bengal Shops and Establishments Act, 1963 and Rules 11, 12, 21 and 48 of the West Bengal Shops and Establishments Rules, 1964. Accordingly, this application under Section 482 of the Code of Criminal Procedure is allowed. The proceeding in Complaint Case No. C. 1827 of 2009 pending before the learned 10th Metropolitan Magistrate, Calcutta, is hereby quashed to prevent the abuse of process of Court. 9. Department is directed to communicate the copy of this order to the Court of learned Metropolitan Magistrate, 10th Court, Calcutta, for information and necessary action. Urgent photostat certified copy of this order, if applied for, be supplied promptly to the parties or their Advocates-on-record observing usual formalities.