J. Choudhury Vs. the State

J. Choudhury vs The State

Type Court Judgment Court Orissa Decided Apr 11, 1963

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Citation: sooperkanoon.com/528317
Court: Orissa High Court
Judge: R.L. Narasimham, C.J.
Decided On: Apr 11, 1963
Case Number: Criminal Revn. No. 329 of 1962
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Acts & sections: Indian Penal Code (IPC), 1860 - Sections 188; Epidemic Diseases Act - Sections 2(1)

Parties & Advocates

Appellant / Petitioner

J. Choudhury

Advocate R.N. Misra and ;R.C. Patnaik, Advs.

Respondent

The State

Advocate Standing Counsel

Legal References

Acts: Indian Penal Code (IPC), 1860 - Sections 188; Epidemic Diseases Act - Sections 2(1)
Reported In: AIR1963Ori216; 1963CriLJ659

Excerpt

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....officer, or any person authorised by him in this behalf, submit himself, herself, the minor child or the minor wife as the case may be, for inoculation against cholera forthwith, unless such person, parent or guardian or husband proves to the satisfaction of the said officer, or the person duly authorised by him in tms behalf, that he or the minor child or the minor wife was inoculated against cholera within a period of six months and produce a certificate from a medical practitioner or a member of the health department to that effect.'paragraph 8 prohibits a person from entering into the area mentioned in paragraph 7 unless he is inoculated aganist cholera and carried with him a certificate from a registered medical practitioner to the effect that he has been inoculated against cholera within a period of 6 months. paragrapn 15 of the regulations makes disobedience of any of the provisions of the regulations an offence punishable under section 188 i.p.c.2. the petitioner refused to get himself inoculated against cholera saying that he had a conscientious objection against inoculation and that he had taken sufficient preventive homoeopathic medicine to protect himself against an attack of cholera. he also stated that he was of the view that inoculation was dangerous to human health and that inoculation would create reactions on the human body which might endanger human life. this plea was not accepted by the magistrate who convicted him under section 188 i.p.c. and sentenced him to pay a fine of rs. 20/- in default, to undergo simple imprisonment for one week.3. there can be no doubt that the petitioner was guilty of contravening regulations 7 and 8 mentioned above. admittedly he did not get himself inoculated, nor did he have in his possession a certificate from a medical practitioner showing that he had been inoculated against cholera within a period of 6 months prior to 4-7-1959.4. the main contention raised on behalf of the petitioner by mr. misra was that by.....

Full Judgment

ORDER

R.L. Narasimham, C.J.

1. The petitioner is a practicing homoepathic doctor in Puri Town. He was prosecuted for an offence under Section 188 I.P.C. for having refused to get himself inoculated against cholera on 4-7-59(during the Ratha Jatra Festival). The Government of Orissa had made certain Regulations in exercise of the powers conferred on them by Section 2(1) of the Epidemic Diseases Act 1897 for the purpose of preventing the spread of cholera in Puri District. Paragraph 7 of the said Regulations is as follows:--

'7. Every person, the parent or guardian of every minor child above one year or the husband of any minor wife residing within the limits of the areas mentioned above, shall, when directed by the District Health Officer or Municipal Health Officer, or any person authorised by him in this behalf, submit himself, herself, the minor child or the minor wife as the case may be, for inoculation against cholera forthwith, unless such person, parent or guardian or husband proves to the satisfaction of the said officer, or the person duly authorised by him in tms behalf, that he or the minor child or the minor wife was inoculated against cholera within a period of six months and produce a certificate from a Medical practitioner or a member of the Health Department to that effect.'

Paragraph 8 prohibits a person from entering into the area mentioned in paragraph 7 unless he is inoculated aganist cholera and carried with him a certificate from a Registered Medical Practitioner to the effect that he has been inoculated against cholera within a period of 6 months. Paragrapn 15 of the Regulations makes disobedience of any of the provisions of the Regulations an offence punishable under Section 188 I.P.C.

2. The petitioner refused to get himself inoculated against cholera saying that he had a conscientious objection against inoculation and that he had taken sufficient preventive homoeopathic medicine to protect himself against an attack of cholera. He also stated that he was of the view that inoculation was dangerous to human health and that inoculation would create reactions on the human body which might endanger human life. This plea was not accepted by the Magistrate who convicted him under Section 188 I.P.C. and sentenced him to pay a fine of Rs. 20/- in default, to undergo simple imprisonment for one week.

3. There can be no doubt that the petitioner was guilty of contravening Regulations 7 and 8 mentioned above. Admittedly he did not get himself inoculated, nor did he have in his possession a Certificate from a Medical practitioner showing that he had been inoculated against cholera within a period of 6 months prior to 4-7-1959.

4. The main contention raised on behalf of the petitioner by Mr. Misra was that by the passing of the Orissa Homoeopathic Act, 1958, Homoeopathy has become one of the recognised system of medicine in the State of Orissa and that consequently the taking of medicine taken under the Homeo system, which are held by a competent medical practitioner to be equivalent to inoculation against cholera, must be held to be a sufficient compliance with the provisions of the said Regulations. He has not however been able to show that there is any provision either in the Homoeopathic Act or in the Rules made under that Act, which expressly says that for statutory purposes the taking of homoeopahic medicines, for the purpose of protecting oneself against attacks of cholera, would be treated as equivalent to inoculation against cholera.

5. I am not concerned here with the question as towhether inoculation is injurious to health or not or elsewhether any other system of medicine provides a betterremedy against attacks of cholera. The simple question iswhether the petitioner has contravened the provisions otRegulation 7 and 8. On his own admission he has contravened them and his guilt is thus established beyonddoubt.

6. If the petitioner feels that the Homoeopathic methodof providing immunity against attack of cholera should be put on a par with the allopathic method of inoculation, it is open to him to move the appropriate authorities andget a suitable exemption clause inserted in the Regulations. But in the absence of such an exemption clausehe must be held to have contravened the provisions of thesaid Regulations.

7. But as the offence is of a purely technical naturethink a token punishment would suffice. While thereforemaintaining the conviction of the petitioner under Section188 I.P.C. I reduce the fine to Rs. 5/- (Rupees five onlyin default of payment of the fine he shall undergo simpleimprisonment for one week.

Same Parties J. Choudhury vs The State Same Subject Criminal Same Judge R.L. Narasimham, C.J. Acts & Sections Indian Penal Code (IPC), 1860 - Sections 188; Epidemic Diseas...

Criminal