Banerjee and Stevens, JJ.
1. This is a rule calling upon the Magistrate of the District to show cause why the convictions and sentences in this case should not be set aside on the ground that as regards the offence under Section 307 of Act II (B.C.) of 1888, it has not been found that the accused were occupiers of the premises in question, and that as regards the offence under Section 336, it has not been found that the accused permitted any animals to be kept in the said premises in contravention of the provisions of Section 335 within the meaning of the law.
2. No one appears to show cause, but a written explanation has been submitted by the Magistrate which goes to supplement the judgment. We do not think that effect can be given to the explanation as supplementing the judgment.
3. Turning now to the judgment, we find that there is nothing to show that the accused are the occupiers of the premises in question, and so the conviction under Section 307 of Act II (B.C.) of 1888 must be set aside.
4. Then as regards the conviction under Section 336 of the above Act, this is how the finding is stated: 'The Court believes the evidence of the Inspector and the peons that the accused Abhoy Moira and his son have let out a stable on hire where ticca gharries are kept.'
5. If that is so, can it be said that the accused have permitted animals to be kept on the premises in contravention of the provisions of Section 335 as required by Section 336 to constitute the offence of which they have been convicted
6. Section 335 enacts that 'no person shall keep any animal for profit within Calcutta except in a place licensed by the Commissioners.' And on referring to Schedule 2, Rule 6, we find it laid down that 'when the owner or lessee of any place is liable to take out a license, the license should be taken out by the lessee if there is any lessee; if not, by the owner.' Now, the finding is that these premises are let out on hire; therefore, the provisions of Section 335 have been contravened by the lessee. Then can it be said that, notwithstanding that that was so, the accused who are the owners of the premises must, nevertheless, be held to have permitted the animals to be kept on the premises in contravention of Section 335, because the person bound to take out a license had failed to take out the same? To hold that, would be to hold that the accused are liable for the acts of their lessee, over which they have no control.
7. If a person grants a lease of his land or house, he can have no direct possession of, or control over, the same; and if the lessee thereafter, without taking any license, keeps any animals on the premises for which he is required by law to take out a license, the penalty for doing so ought in reason and justice to attach to the lessee and the lessee alone. The words of Section 336, though apparently general, must be read with this limitation, namely, that the penalty under the section attaches to the owner for permitting any animals to be kept thereon when he has direct possession of the land in question, but not when he has leased the same out to another.
8. That being so, the conviction under Section 336 of Act II (B.C.) of 1888 must also be set aside, and the fines, if realized, refunded.
9. The order imposing a daily fine is also set aside.