1. The appellant has been convicted before the Chief Presidency Magistrate of an offence against Section 22 of Act XII of 1875, by improperly discharging ballast from the ship Ben Nevis, by the boats of Bishto Manjhi and Nufur Manjhi, by throwing it into the river within the Port of Calcutta, and has been sentenced to pay a fine of Rs. 250. The amount of the fine entitles the accused to appeal to this Court.
2. In our opinion the conviction is bad in law, for the facts proved or admitted do not establish any offence under the Act against the appellant. The first Clause of Section 22 prohibits the casting of ballast or rubbish in the port without lawful excuse.
3. The next clause prescribes a penalty for whoever by himself or another so casts or throws the same, and for the master of any vessel from which the same is cast or thrown. It seems to us that to warrant the conviction under this section of a person, not being master of a vessel from which ballast is thrown, it must be shown that the accused person, if he did not himself throw the ballast or rubbish into the port, intentionally caused somebody else to commit that offence.
4. In this case all that is proved or admitted against the appellant is that he made an agreement to remove the ballast from the ship Ben Nevis; that he engaged boats for that purpose; and that the ballast was removed from the ship in those boats. The boatmen, instead of landing the ballast at the proper place, threw it into the river within the limits of the port. They were arrested, convicted, and fined. Proceedings were subsequently taken against the appellant under the same section, when the Magistrate held him 'liable for his servants' act,' and accordingly convicted and sentenced him. We cannot bring ourselves to accept this doctrine as admissible in dealing with a person, accused of an offence, unless his liability for the acts of another is specifically declared by statute. The learned Standing Counsel who has supported the conviction admits that in a criminal trial the doctrine laid down by the Magistrate in this case would not be applicable, but he endeavours to distinguish this case from a criminal matter by describing it as quasi-criminal, or as one relating not to an offence' but to a more breach of rule. And in such a case he submits that knowledge or intention on the part of the person who is accused in respect of something done by other persons is not essential.
5. We cannot, however, apprehend the distinction so suggested as entitling a Criminal Court to place a person accused of what is described as a quasi-criminal act at a disadvantage from which one charged with serious crime would be protected, viz., being hold responsible for the acts of another without any proof of abetment or connivance on his part, and, in the absence of any statutory provision, fixing him with such responsibility. We observe that Act XII of 1875 in Chapter VIII refers to broaches of it as 'offences,' makes them triable by a Magistrate, and provides for the enforcement of penalties on conviction. The trial then is, we apprehend, a criminal trial, and the same principles will apply to it as to other criminal trials.
6. If the Legislature had intended to make persons in appellant's position criminally liable for acts done by persons employed by them without proof of connivance, it would surely have provided for this in the Act. The very Section (22) and following sections do enact that the master of any vessel shall be liable to be punished for acts done on board in breach of the rules laid down, though they may possibly be done without his knowledge, or even against his orders. This specific creation of criminal liability as against the master shows that without it he would not be liable for an act not done, or expressly permitted by himself.
7. We find nothing in the Act which renders the appellant liable to punishment for the acts done by others not proved to have been by his abetment or connivance. We therefore set aside the conviction and direct that the fine, if paid, be refunded.
8. For these reasons we set aside the convictions and sentences in appeals Nos. 156 and 157.