1. One Roshanibee was suffering from plague and the house in which she was living was examined by the doctor and disinfected. The accused removed her on the 20th February 1912, to another house, where there were several persons living. It is the case for the prosecution that a result of this removal of the patient, one Chottabai, living in the house to which the patient was removed, was attacked with plague on the 27th February 1912. On these facts found to be proved by the Sub-Magistrate, he convicted the accused of an offence under Section 263 of the Indian Penal Code.
2. On appeal, the Joint Magistrate directed the Sub-Magistrate to take 'any further evidence which prosecution can produce to prove illegality or negligence.'
3. We do not think that in this case it was necessary to direct such further evidence to be taken. According to the prosecution, witnesses show prima facie that the accused was guilty of negligence unless he proves that he has taken the necessary precautions. The Public Prosecutor contends that the burden of proof is on the accused while Counsel for the accused contends that it is for the prosecution to show that no proper precautions were taken and that mere removal, even though with knowledge that the patient was suffering from plague, followed in this case by proof that a resident was also attacked by it, is not sufficient. The prosecution is entitled to a decision on the case put forward.
4. We, therefore, set aside the order and direct the Joint Magistrate to dispose of the appeal on the evidence on record.