Harington and Teunon, JJ.
1. This is a Rule calling upon the Municipal Magistrate and on the Chairman of the Corporation to show cause why the conviction and sentences passed on the accused should not be set aside on the ground that the joint penalty passed on the two accused on the 8th March last is illegal, and on certain other grounds which it is unnecessary for us now to deal with.
2. What happened is this. There was a house which, under Section 444 of the Calcutta Municipal Act, had been found to be unfit for human habitation. An order was issued prohibiting persons from using the same, or suffering it to be used for the purpose of human habitation. Of the two accused, one is the owner and the other was apparently occupying the building with him. These two persons have been convicted under Section 444, Clause (2) read with Section 574 for disobedience of the order of the Magistrate made under Section 444, Clause (2).
3. In each of these two persons the act of disobedience was a separate offence. In our view the passing of the joint conviction and joint penalty on the two persons, each of whom committed an offence, is not warranted by any provisions of law.
4. We have perused the explanation of the Magistrate, and we have heard the learned vakil who shows cause against the rule. Neither the learned vakil nor the Magistrate are able to support the sentence under any provision of the law.
5. The result is, we must make the rule absolute on the ground that the passing of the joint penalty on the accused who are guilty of separate offences is illegal. We, therefore, set aside the conviction and sentence passed on the accused, and direct that the case be re-tried. The fine, if paid, must be refunded.