Seshagiri Aiyar, J.
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 I.P.C. 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. Under Section 366 of the Madras Municipality 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 lodged 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 in which there were none living but the patient and himself was such a violation of the order as brought him under Section 269 of the I.P.C. The 3rd clause of Section 366 says: 'whoever, having charge of a person 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 I.P.C. The learned Crown Prosecutor suggested that this notional imputation of crime deprived the Magistrate of power to enquire 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 Indian 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. Turning to the Indian Penal Code, I find that to bring the offender within it, he should have unlawfully or negligently done an act which he knew or had reason to believe to be, likely to spread the infection of any disease dangerous to life. The accused in this case is not charged with disobeying the order of a public servant lawfully promulgated. He is charged with having knowingly spread the infection of disease. Therefore the question is not whether the order of the Health Officer in its inception was right, but whether the conduct of the accused in choosing the alternative of sending his son to an isolated house was an offence under Section 269.
2. Before I refer to cases I must draw attention to the language of the section. It uses the words 'unlawfully or negligently' and not illegally. As was pointed out by Lord Ellenborough in Rex v. Vantondills (1815) 4 M. & S 73 : 105 E.R. 762 an indictment which charges a person to have done an act unlawfully or injuriously must assume or prove that there was no lawful excuse. Le Blanc, J., said this: 'Neither did they pronounce that every person who inoculated for this disease was guilty of an offence, provided it was done in a proper manner, and the patient was kept from the society of others so as not to endanger communication of the disease. In such a case the law did not pronounce it to be an offence. So the gist of the unlawful act is that there must be danger of the infection spreading. If care is taken to avoid such an infection the act cannot be said 'to be unlawful or negligent. In fact the City Municipality Act contemplates that the action will not amount to an offence if a proper lodging or accommodation is found for the infected person. When we remember that Section 269 does not use the word illegal which has been defined by Section 43 as being applicable ' to everything which is an offence or which is prohibited by law ', but uses the word ' unlawful ', it is clear that the prosecution must make out not only that there has been disobedience to the order of the Health Officer but also that the disobedience was unlawful and negligent and had also the effect of spreading the infectious disease. The case near in point is Cahoon v. Mathews I.L.R. 24 Cal. 494. In that case a mother was directed to remove her daughter to an Isolation Hospital. She refused to comply with the order unless she was herself allowed to accompany her child. Thereupon she was charged under Section 269 of the I.P.C. The learned Judges held that as in her own house there were no lodgers, as the order to remove was passed upon a misapprehension as to the existence of lodgers and as sufficient accommodation was provided for the infected child, the mother did not unlawfully or negligently. The learned Judges say and I entirely agree with that observation of theirs: 'An Act however may be lawful though it may be illegal.' Therefore although in the present case the refusal to comply with the direction of the Health Officer might have been illegal defined in Section 43, I am not prepared to hold that it was unlawful when it is found that proper precautions were taken to prevent infection and to provide a suitable lodging for the person infected. I may refer in this connection to the weighty observations of Lord Blackburn and Lord Watson in Metropolitan Asylum District v. Hill (1881) L.R. 6 A.C. 193. Lord Blackburn said: 'On those who seek to establish that the legislature intended to take away the private rights of individuals, lies the burden of showing that such an intention appears by express words or necessary implication'. Lord Watson in the same case said: 'Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislature intended that the discretion as to the use of the general powers thereby conferred should be exercised in strict conformity with private rights.' The Health Officer would have been well within his rights if he had told the accused that he should either provide a proper lodging for the son or he should remove the child to the Hospital. That would have been in the language of Lord Watson an exercise of discretion compatible with private rights. The mere failure to carry out an order which could otherwise have been bona fide obeyed by the avoidance of the danger of infection cannot be regarded as an offence under Section 269 of the I.P.C. I must, therefore, quash the conviction. The learned Crown Prosecutor informed me that in case I came to the conclusion that the Magistrate was not justified in shutting out evidence, he was not prepared to press for the case being sent down for further enquiry. All that is necessary in a case of this decryption is to state the principle which should guide the Magistrate under similar contingencies. The fine, if paid, must be refunded.