H KASTURICBAND Vs. STATE

JUDGEMENT

(1.) The petitioners have been convicted under rule 29 (1) read with rule 53 of the rules framed under the Madras Entertainments Tax Act, 1939 and sentenced to a fine of Rs. 45. The 1st petitioner is the proprietor and the 2nd petitioner is the* manager of Mahavir Talkies at Tirupathi. The case against them is this : On the night of 24th March 1954 the Deputy Commercial Tax Officer (P. W. 5), Assistant Commercial Tax Officer (P. W. 2) along with P. W. 1 and a clerk and peon of P. W-'1's office visited the cinema house to check it when the second show was on. They entered the floor section of the auditorium and on inspection found about 39 persons without tickets. This has formed the basis of the charge under the rules mentioned above. The Additional First Class Magistrate who tried the case accepting the evidence of P. Ws. 1, 2 and 5 that there were a number of persons without tickets in the hall found the two accused guilty as stated above. The aggrieved accused have filed this revision petition. The propriety of the conviction is canvassed in this revision petition on various grounds. It was argued that the trial Court, having found that the relations between the accused and the Assistant Commercial Tax Officer were far from being cordial, ought not to have relied on the evidence of the witness especially when two previous attempts of P. W. 2 to get them convicted for similar offences have proved abortive. I do not find any reason either to discredit these respectable witnesses or to disagree with the appreciation of their eviden by the trial court. What follows is that on the day when the theatre was inspected there were some persons in the floor section without tickets. Alternatively, it was contended that the Additional First Class Magistrate had no jurisdiction to entertain the complaint as the offence is one punishable with fine and* could therefore be tried by any Second Class Magistrate. According to him, every criminal case should be first filed in the lowest Court of competent jurisdiction and in this case it is the second Class Magistrate of Tirupathi that could only take cognisance of this case. I find myself unable to agree with this proposition. There is no provision in the Criminal Procedure Code which bars the trial of a case by a superior Magistrate notwithstanding that it is competent for a Magistrate of the lowest grade to entertain the case. This argument, therefore, cannot prevail and has to be rejected. On the finding of the Magistrate, could it be said that the petitioners have violated the provisions of rule 29 (1) of the relevant rules and are therefore punishable under rule 53 which is the penal rule? Rule 29 (1) runs thus:

(2.) In the present case, it is seen that it is only admission or the permission to admit that is prohibited under this rule. It is not the mere presence of ticketless spectators that is made the gravamen of the offence of violation of this rule. In my opinion, the expressions " admit or cause" or "permit to be admitted" carry with them the meaning of voluntary act on the part of the persons charged with the duty under that rule. They connote a volition of the proprietor of the cinema house which means that the entrance into the hall is with the knowledge or consent of the person responsible therefor. The word "admit" means to allow to eater. The meaning of this word as given in Webster's New International Dictionary is "to suffer to enter, to grant" etc. The word "permit" has the same meaning. It is significant that the language is "shall not admit or cause or permit to be admitted." This, in my opinion, implies either the proprietor himself should allow people to gain entrance into the hall or make other people give them admission into the house. It looks to me that the rules contemplate a definite action on the part of the proprietor. This conclusion of mine is not only fortified by the frame of the rule but by decided cases. Construing an analogous provision in the Forest Act, section 21 (d) which makes inter alia permitting the cattle to trespass an offence, Collins, Chief Justice and Justice Wilkinson in Queen Emperess v. Krishnayyan expressed the opinion that to sustain a conviction under that section it should be shown that the person accused of the crime had eith pastured the cattle or permitted them to trespass in the reserved forests and that the owner of the cattle could not be held liable unless some overt act was established against him. Dealing with the same provision of law another Bench of the Madras High Court in Ramdas v. King Emperor demurred to the proposition regarding the overt act to be proved against the owner of the cattle. At the same time, the learned Judges decided that mere finding of cattle grazing within the forest would not by itself make the owner liable to be punished under that section. Something more than that is necessary to bring the owner within the mischief of that rule such as by showing that the owner knowing that the cattle would trespass into the forest reserved neglects to take proper care of them or knowing that his servant would drive the cattle to the reserved forests neglects to take proper care of the cattle or forbid the servant from doing it or connives at it in some manner. A similar expression in section 42 (2) of the Motor Vehicles Act fell to be construed by Mr. Justice Horwill in Abdul Sallam Rowther, In re . Section 42 (2)of that Act prohibited among other things the owner of a vehicle permitting its use by his driver in a public place except in accordance with the provisions of the permit. The learned Judge held that the word "permit" means that the person actually and knowingly allows the thing to be done and that mere negligence on the part of the owner such as not locking up the vehicle so as to prevent the driver from, taking it out would not amount to permitting it to be used. To the same effect is the ruling of Mukherji, J., in Indra Mohan Roy v. Emperor1. There, the owner of a motor bus which was driven on a certain day by a person who had no licence to drive was charged for that offence.

(3.) The liability of the owner was said to arise under section 6 of the relevant Act which provided that no owner shall allow any person who was not licensed to drive it. The learned Judge was of the view that unless the driving of the vehicle by an unlicensed driver was with the knowledge of the owner, the conviction could not be sustained. A Bench of the Bombay High Court in Shantaram v. Emperor had to consider the applicability of section 6 of the Motor Vehicles Act (VIII of 1914) to a case where a driver drove the car beyond the limits of the licence. The owner of the car also was charged with the same offence. The learned Judges upheld the contention of the owner that the words "no owner of a motor vehicle shall allow any person", etc., indicate that there should be either express permission or facts from which the Court can infer implied permission on the part of the owner. The learned Judges remarked that the word "allow" ordinarily involved permission express o implied and it was used in that sense in section 6 of the Act. The view taken by me accords also with the dictum of Justice Mathews in Somerset v. Wade . It was decided there that a licensed person could not be convicted under section 13 of the Licensing Act, 1872, of permitting drunkenness to take place on his premises when the licensee did not know that such person was drunk. It was observed by Mathew.J., that the expression "suffers" used in section 17 of that Act was not distinguishable froei the word "permit" in section 13 of that Act. The other learned Judge Coloms, J., quotes the remarks of Coleridge, C. J. in Somerset v. Hart: