Guha Ray, J.
1. The petitioners were convicted under Section 28, Bengal Perries Act, and under Section 100E, Bengal Local Self-Government Act, on the complaint before the District Magistrate of Malda by the Chairman of the District Board of Malda, the allegation being that these petitioners, all inhabitants of Sahapur, started plying a ferry with effect from the first week of April, 1952 within 500 yards of the Jhowghatta ferry and they themselves crossed therein and began to take other people across the river thereby causing a serious menace to the .administration and revenue of a public ferry namely the Jhowghatta ferry.
The District Magistrate on receipt of the complaint directed notices to issue on the petitioners requiring them to show cause why suitable action should not be taken against them under Section 28, Bengal Ferries Act, and also under Section 100E, Bengal Local Self-Government Act. On their showing cause he directed summonses to issue against them under those sections. On 23-6-1952 the District Magistrate who took cognizance transferred the case to Sri S.K. Ganguly, Magistrate, First Class, for favour of disposal. On 22-9-1952, the Sub-Divisional Magistrate recorded the following order:
'The trying Magistrate has left this district on transfer. Hence this case is withdrawn to my file and transferred to Sj. G. P. Bose, Magistrate, First Class, for favour of disposal.' This learned Magistrate tried the case and convicted the petitioners and sentenced each of them to pay fine of Rs. 10/- under Section 28, Bengal Ferries Act, and a fine of Rs. 15/- under Section 100E, Bengal Local Self-Government Act.
2. Mr. Mukherjee argued on behalf of the petitioners that the learned Magistrate had no jurisdiction to try this case because the learned Sub-Divisional Magistrate who had neither taken cognizance of the case nor had made over the case to Sri S.K. Ganguly was not entitled to withdraw it from his file and transfer it to some one else. The relevant sections are Sections 192(1) and 528(2), Criminal P. C. Under Section 192(1) the Sub-Divisional Magistrate may transfer any case, of which he has taken cognizance, for enquiry or trial, to any Magistrate subordinate to him.
As in this case the Sub-Divisional Magistrate Jhad not taken cognizance of the case, he wasevidently not entitled under Section 192(1) of the Code to transfer the case from the file of Sri S.K. Ganguly. Under Section 528(2) of the Code the Sub-
Divisional Magistrate is entitled to withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
It is clear that the adjectival clause 'which he has made over' qualifies the words 'any case' after the words 'recall' but not the words 'any case' after the word 'withdraw' so that under S, 528(2), it is 'open to the Sub-Divisional Magistrate to withdraw from any Magistrate subordinate to him any case and transfer it to another Magistrate subordinate to him for trial even though he had neither taken cognizance of it nor made it over to the Magistrate from whom it is withdrawn. This point must, therefore, fail
3. Mr. Mukherjee on behalf of the petitioners next argued that on the evidence no case was made out under either Section 28, Bengal Ferries Act, or Section 100E, Bengal Local Self-Government Act, because there is no evidence whatever that the alleged' ferry was plied by the petitioners for hire, and the learned Magistrate had to fall back upon a presumption in order to find that they must have plied for hire. To examine the validity of this contention it is necessary here to look into the terms of the two sections. Section 28, B.P. Act, runs as follows:
'Whoever conveys for hire any passenger, animal vehicle or other thing in contravention of the provisions of Section 16 shall be punished with fine which may extend to fifty rupees.'
Section 16 prohibits everyone from maintaining a ferry to or from any point within a distance of two miles from the limits of a public ferry. The draftsmanship of the two sections leaves much to be desired, for evidently what has been prohibited by Section 16 is not quite what Section 28 seeks to penalise as contravention of Section 16, maintaining a ferry being somewhat different from conveying for hire passengers etc., though the second may be included in the first. Anyway Section 28 as it stands makes it an offence only to convey for hire passengers etc. to or from a point within a distance of two miles from the limits of a public ferry. Section 100E, Bengal Local Self-Government Act, is in the following terms:
'If any person, without the sanction of the District Magistrate, constructs a temporary bridge or plies a ferry not ostensibly for hire within two miles of a public ferry which is under the management of a District Board, or a bridge on which a District Board is authorised to levy tolls he shall be liable to fine which may extend to one hundred rupees.'
While Section 28, B. F. Act, expressly requires the offender to convey for hire, Section 100E, B.L.S.G. Act, uses the words 'plies a ferry not ostensibly for hire' and it is contended by Mr. Mukherjee that this means that the plying of the ferry must be really for hire. Mr. Basu on the other hand points out the difference in the terms ofthe two sections and argues that If Mr. Mukherjee's contentions were correct, there would be little or no difference between what is sought to toe penalised by each and yet the two sections use noticeably different words for expressing just the Same thing.
Another thing worth mention is that under Section 28, B. P. Act, the maximum sentence is a fine of Rs. 50 and under Section 100E, B.L.S.G. Act, the maximum sentence is a fine of Rs. 100, that is to say, exactly double that under Section 28, B. P. Act. I must confess that the words 'not ostensibly for hire' in a penal Section of a statute do present a certain amount of difficulty in interpretation. It seems, however, quite reasonable to hold that it is aot for nothing that this somewhat difficult form of expression has been used and further that a larger fine is provided for in the second case than in the first. A careful perusal of the terms of the two sections does suggest that the two approach the same question from two different standpoints, positive in the first and negative in the second.
The two sections are thus complementary to, and not replicas of, each other. What has been emphasised in Section 100E, B.L.S.G. Act, is the negative aspect of plying for hire, the positive iaspect of which is empasised in Section 28, B. P. Act, and for the negative, a higher sentence is provided. Evidently then, the Legislature considered the negative aspect somewhat more harmful than its positive aspect. In other words, it comes to this that the offence of conveying passengers etc. openly for hire is less dangerous to the interests of the public ferry than that of plying a ferry or doing the same thing in such a way that it is made to appear as though it is not for hire.
I am, therefore, inclined to agree with Mr. Basu when he says that Section 100E, B.L.S.G. Act, means that the offence will be complete if one plies a ferry within the limits mentioned and does so in a manner leading others to believe that it is not for hire. In this view of Section 100E, B.L.S.G. Act, it is not necessary for the prosecution to prove that the petitioners plied the ferry for hire but what the prosecution must prove is that they managed the whole thing in such a way as to give rise to appearances that it was not really for hire.
4. That passengers were conveyed for hire, there is no evidence to show and Mr. Basu frankly concedes that no offence under Section 28, B. P. Act, has been made out. According to Mr. Basu, however, an offence under Section 100E, B.L.S.G. Act, has been established because it does not require that the plying of the ferry must be for hire. The question here arises whether the prosecution succeeds in establishing an offence under this section by a mere absence of proof of the fact that the ferry was plied for hire. If that were really what the Legislature sought by means of this section, one wonders whether that object would not have been secured far more easily by simply leaving out the words 'not ostensibly for hire'. Yet if these words have been used, they must have been, used with a specific object.
While the general object which both the sections have in view is clearly the protection of the revenue from a public ferry, the one seeks to secure this by punishing persons who openly ply for hire and the other by punishing those who instead of openly plying for hire do so in a way that it is made to appear as though they were not plying for hire. This seems to me to make it obligatory on the prosecution to prove that the offenders were doing it in that way and it is open to them to prove this from the conduct of the offenders or from other 'circumstances. That the ferry was plied 'not ostensibly for hire' has to be established and it can be established only; by leading evidence to indicate that in appearance at least it was not for hire.
The prosecution cannot discharge its initial onus by simply refraining from adducing evidence to show that it was for hire, evidently because 'the absence of such evidence might mean either that it was for hire or that it was not, so that the accused would be entitled in such a case to the benefit of a reasonable doubt whether after all it was really for hire or not. In this case, even an attempt does not appear to have been made to do this, presumably because the prosecutor was under the impression that it would be enough to leave it unproved that the plying was for hire. Prom this point of view, it has got to be held that no offence under Section 100E has been proved either.
5. There is yet another aspect of the matter. Section 28, B. P. Act, penalises conveying for hire and Section 100E plying not ostensibly for hire. In this case, the evidence is that for sometime there were two boats and for sometime only one. Of the boatmen who plied these boats, only two, namely Khoka Manjhi and Jamsher Manjhi were mentioned but they are not amongst the accused and the accused are alleged only to have crossed in the boats. In one or two places in the evidence they are also alleged to have started the ferry. On this evidence, they cannot be held either to have conveyed passengers for hire or to have plied the ferry.
The finding on this evidence must rather be that they were conveyed in the ferry. A ferryman plies a ferry just as a boatman plies a boat. The person who engages the boatman and pays him can hardly be said to ply the boat. Similarly the man who might have been responsible for organising this ferry need not necessarily be the man plying the ferry and in order to enable the Court to hold that they plied the ferry, there must be evidence to that effect. There is simply, none. The convictions therefore of the petitioners under Section 28, B. P. Act and Section 100E, B.L.S.G. Act, cannot be sustained from this point of view also and must be set aside and the petitioners acquitted of both. The Rule must accordingly be made absolute. The fines, if realised, are to be refunded.