1. This is an application for the revision of orders of acquittal made by the Joint Magistrate of Madura on the 24th February 1887. The accused in the 29 cases to which the application refers, are butchers, who occupy 8 stalls in what is known as the East Market in the town of Madura. It appears that for 4 years past the accused sold meat in that market and occupied stalls therein, paying fees in the nature of rent to the Municipality. It is the largest market in the town of Madura and contains a slaughter house with 52 butchers' stalls. That it is a public market and maintained out of the Municipal fund and that the property therein is vested in the Municipality, subject to the provisions of Act IV of 1884, are not disputed. That subsequently to the 1st April 1886, the accused slaughtered animals in that portion of the market, which is set apart for use as a slaughter house, and sold meat in the stalls therein, are also facts about which there is no dispute. The case for the prosecution was that by using the slaughter house and occupying the stalls during the period mentioned above, they committed offences punishable under Sections 191, 192 and 195 of Act IV of 1884. The accused were, however, formally charged by the Municipal Council before the Joint Magistrate only with the offence punishable under Section 192, but, after acquitting them of that offence, the Magistrate proceeded to consider with reference to the provisions of Section 245, Criminal Procedure Code, whether they were guilty of an offence punishable under Section 195 of Act IV of 1884, and recorded a finding in the negative. As regards the offence charged, he held that slaughtering animals though without a license, in a place set apart under Section 191 as a public slaughter house, did not amount to an offence, and that the accused were under no obligation to take out a license. As regards the offence punishable under Section 195, he observed that though he was not bound to record a finding one way or the other, as the Municipal Council had not authorized a prosecution under that section, he considered it desirable to record one at the instance of the pleader for the Municipality in order to prevent a renewal of litigation. His finding was that, in the special circumstances of the cases before him, an order to the accused to vacate the stalls in their occupation was not au order refusing them permission to sell, and that the accused, therefore, had an implied permission or that the permission they previously had was not withdrawn. The grounds, on which we are asked to interfere in revision are (I) that the accused are guilty of an offence under Section 191 and (II) that the Joint Magistrate is in error in holding that they had an implied permission to sell meat in the market.
2. As to the 1st objection, we do not consider that it can be supported. Section 191 declares what places may be used for slaughtering animals and Section 192 prescribes a penalty for using any other place for that purpose without the written permission of the Chairman of the Municipal Council. The very act of providing a place for being used as a public slaughter house is a license to the public to use it as such, subject to the payment of the prescribed fee, and there is no obligation to take out a special license under Section 191, Clause 2. If in providing a place as a public slaughter house, a portion is set apart also for the sale of flesh, it is a public market within the meaning of Section 194, and the Joint Magistrate is, therefore, right in holding that Section 191, Clause 2 refers to a place other than a public slaughter house used without a special license for the purposes mentioned therein.
3. As to the second objection, the material facts of the case, so far as they bear on it, are sufficiently stated by the Joint Magistrate in paragraphs 16-18 of his order of acquittal. It is provided by Section 195 that 'whoever without the permission of the Municipal Council sells or exposes for sale any article within a public market shall be liable to a fine not exceeding Rs. 20 for each offence.' The question then for consideration is this, had the accused the permission of the Municipal Council to sell at the time of the sale which forms the subject of complaint ?
4. It must be remembered that the permission contemplated may be one granted for the first time or a previous permission not revoked either in. fact or in law.
5. In coming to a finding on this point, the Joint Magistrate observes that an order to the accused to vacate the stalls in their occupation does not imply a refusal of permission to sell. In this opinion, we are unable to concur, for an order to vacate a stall let for purposes of sale in a public market clearly amounts to a direction not to sell from the date on which the stall is required to be vacated. Again, he considers at some length whether the lease to Ramasami Naidu was or was not operative when the accused were ordered to vacate their stalls.
6. We are of opinion that it is quite immaterial for the purposes of this prosecution whether that lease is valid or not. Assuming that it is valid, it cannot operate to determine any right which the accused have, and assuming that it is invalid, it cannot create any right which they have not.
7. Further it is important to bear in mind, in construing Section 194, the facts that the property in the public market, the right of possession as owner and its regulation and control are for the purposes of the Act vested in the Municipal Council. Reading Section 194 in the light of that fact, the clause which enables the Municipal Council to levy rents, fees, and tolls appears to be an enabling provision and it does not, in our judgment, operate to take away any right which they have as owners of the public market. This view is confirmed by Clause 3 which presupposes a valid lease or tenure granted by them and empowers them to determine it at once in the event of there being a conviction for breach of a bye-law. As no breach of bye-law is alleged in the case before us for determining the right of occupation, if any, which the accused had, the material question for decision is whether the accused had any lease or tenure in the stalls which they were ordered to vacate, and if they had whether it was lawfully determined. Even assuming that, in granting the lease to Ramasami Naidu, the exigencies of free and open competition were not duly considered, it may be a ground for the Collector and Government to interfere under Section 35 of the Act but it can by no means justify a refusal on the part of a tenant who got in under a lease or by reason of a specific tenure to vacate after the determination of the lease or tenure in due course of law. There is no distinct finding before us as to the nature or duration of the tenancy or tenure which the accused had, and whether any and what notice was necessary, and whether such tenancy or tenure was lawfully determined. If the charge had been amended, if both parties had an opportunity given them to adduce evidence, and if a distinct finding had been recorded we should have expressed an opinion whether the objection is valid. As the case stands at present, we must decline to express any opinion as to the accused's liability to conviction on a charge, which the Municipal Council had not preferred, and to interfere in revision to sot aside an order of acquittal.