1. This is a rule to show cause why the conviction of the petitioner under Section 6 of Act 1 of 1920 should not be set aside on the ground that the learned Magistrate erred in law in making a new case and convicting the petitioner of being the owner of the animal although there was no such allegation and the trial had not proceeded on any such footing. The case for the prosecution was that the petitioner and another person had performed the illegal operation known as phooka upon a milch buffalo. The Section in question, Section 6, Bengal Cruelty to Animals Act (being Bengal Act 1 of 1920) is in these terms:
If any person performs upon any cow or other milch animal the operation called phuka he (shall be deemed to have committed a cognizable offence and) shall be punished with fine which may extend to (five) hundred rupees or with imprisonment for a term which may extend to (two years), or with both, and the owner of the cow or other milch animal and any person in possession of or control over it shall be liable to the same punishment (and the cow or the milch animal on which the operation of phuka was performed shall be forfeited to Government).
2. Now, it is clear that there are two branches to this Section. The first makes punishable the offence of performing the operation of Phooka and the second lays a penalty upon the owner of an animal upon which the operation is performed. As this was a summons case, no charge was framed. Under Section 242, Criminal P.C., the particulars of the offence of which the petitioner was accused were thus stated:
Cruelty to a milch buffalo by performing phooka upon it (by thrusting hand in the private part of the animal) at the time of milking on 2nd January 1939 at about 4-30 a. m. and subsequent days in a khatal at 10/1/2, Kasi Nath Mullick Lane. 111-ireating to a she-buffalo by cruelly and mercilessly beating and otherwise ill-treating at 10/1/2 Kasi Nath Mullick Lane, for a considerable period.
3. The learned Magistrate has come to the conclusion that it was not proved that the 'petitioner actually performed phooka or otherwise ill-treated the animal, but he has ;found that the petitioner was the owner of the animal and that while it was in his possession and under his control phooka was performed upon it. We think that in the interest of justice it is necessary that the accused should be re-tried for the offence of which he has been convicted and that in that trial the accusation under Section 242, Criminal P.C., should make it clear that he is called upon to show cause, why he should not be convicted by reason of the fact that (he is the owner of the animal upon which phooka was performed. The rule is, accordingly, made absolute and it is directed that the petitioner be retried in the light of these observations. The petitioner will continue on the same bail till the disposal of the case in the Court below.
4. I agree.