P KANDASWAMY MUDALIAR Vs. KING-EMPEROR

JUDGEMENT

(1.) The facts of the case are these. The accused was asked by the Health Officer of the City of Madras to remove his son to the Isolation Hospital at Krishnampet, as the child was then suffering from small-pox. The child was being treated by Dr. V. Rama Kamath, a certified medical practitioner. This gentleman advised the accused to remove the patient to an isolated house, which was done. Thereupon this prosecution was launched under Section 269 of the Indian Penal Code. The Magistrate was apparently of opinion that as the Health Officer was the sole judge of the justness of the order to remove the infected child to a hospital, he had no option but to convict the accused of the offence. There is an affidavit that the Magistrate did not permit evidence being given as to the precautions taken by the accused to avoid infection. The question for consideration is whether this conviction is right.

(2.) Under Section 366 of the Madras City Municipal Act (Act III of 1904), under which the order for removal was made, it must appear to the Health Officer that a person is suffering from a dangerous disease, has no proper lodging or accommodation, or lodges in a place occupied by more than one family. Then he can order the person to be removed to the isolation hospital. So the Health Officer has to be satisfied not only that a person is suffering from infectious disease, but also that the infected person has no proper lodging, or is lodged in a place which is occupied by more than one family. In this case, no doubt at the time the order was made the son of the accused was being lodged in a place which was occupied by more than one family. Therefore, the order in its inception was right, although it is defective in that it gave no option to the accused to lodge his son in a proper place. The further question is whether the action of the accused in providing a separate lodging was such a violation of the order as brought him under Section 269 of the Indian Penal Code. The 3rd clause of Section 366 says: Whoever having charge of a parson in respect of whom an order is made under Sub-section (1) disobeys the said order shall be deemed to have committed an offence punishable under Section 269 of the Indian Penal Code.

(3.) The learned Crown Prosecutor suggested that this notional imputation of crime deprived the Magistrate of power to inquire into the elements which constitute the offence under Section 269. It would be dangerous to hold that the prosecution is not bound to prove the offence because the local legislature has enacted that a violation of the order of an executive officer is punishable under a particular section of the Code. The Penal Code is an All-India Statute, and anybody charged under it has the right to expect of the prosecution proof that he has committed the offence as defined in the section.