RADHAKISHEN Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Jhunjhunu recommending that the conviction of the accused Radha Kishan by the learned Sub-Divisional Magistrate Khetri under sec. 17 of the Jaipur Vaccination Act 1943 be set aside. The prosecution alleged that the accused was in the employment of Thikana Parasrampura and he refused to supply the list of the children requiring vaccination to the Vaccinator. The accused, therefore, contravened the provisions of sec. 14 of Jaipur Vaccination Act 1943 (hereinafter to be referred to as the Act) and thus became punishable under sec. 17 of the Act. The accused denied that he was in the employment of Th. Parasrampura and pleaded that he had sent a list of the children requiring vaccination to the vaccinator through one Khetsingh and was therefore, on either view not punishable under sec. 17. The learned Additional Sessions Judge on revision has found that the accused was not proved to be a Patel, Patwari or Kamdar and no formal notice was given to him for supplying the list and his prosecution was without the sanction of the Director of Public Health. The conviction was, therefore, bad and be therefore set aside.

(2.) I have heard the learned counsel for the accused who supports the reference. The learned Government Advocate concedes that the conviction is not sustainable and the reference is perfectly justified. I need not, therefore, deal at length with the case under the circumstances. I however, wish to point out for the benefit of the learned Magistrate that in order to record the conviction under sec. 17 of the Act for contravention of the provisions of sec. 17 it is necessary that the accused should be found to be a Patel Patwari or Kamdar. The learned Magistrate has not found that the accused was a Patel, Patwari or Kamdar. He has also overlooked the prosecution evidence that the accused supplied the list although it reached a little late when the vaccinator refused to accept it on the ground that he was going out. It could not therefore, be said that there was without doubt any contravention on the part of the accused of any provision of sec. 14 even if he was to be held to be a Patel, Patwari or Kamdar. Then there is another defect in the prosecution in as much as it was launched without the sanction of the Director of Public Health, under sec. 14. Any default on the part of the Patwari and Kamdar shall render them liable to prosecution under sec. 17 by order and the sanction of the Director of Public Health. The conviction was therefore, altogether unjustified.