The Petitioner, a resident of the Palghat Municipality, was convicted and fined by the First Class Bench of Magistrates in both the above cases. In case 24 ha was convicted for failure to produce his 31 year old child for vaccination as required by a notice served on him on 23rd September 1929, an offence falling under Sect. 300 of the District Municipalities Act read with Rr. 2 (1) and 11 (1) (a) of the rules framed by Government under that section and he was sentenced to pay a fine of Rs. 3 or to suffer 3 days' simple imprisonment in default. In case 25 he was convicted for failure to comply with another notice served on him on the same day 23rd September 1929 calling on him to discontinue his previous breach of the vaccination rules, viz., failure to get the same child vaccinated in pursuance of a previous notice, an offence falling under Sect. 300 of the District Municipalities Act read with R. 11 (2) of the rules framed by Government under the section and he was sentenced to pay a fine of Rs. 8, at as. 4 per day for 32 days, or to suffer 3 days' simple imprisonment in default.
The petitioner says he has bona fide and conscientious objections to getting his child vaccinated as it will be injurious to its health and that so far his conviction is case 24 is concerned, the Magistrates have erred in declining to consider it at all, as according to him it is a reasonable excuse within the meaning of R. 11 (1) (a) of the rules. This raises an interesting question which is now dealt with by Sect. 2 of 61 and 62 Vict. Ch. 49 exempting conscientious objectors from the operation of compulsory vaccination statutes. But there is no corresponding exemption in the District Municipalities Act. The decision in Butter v. Norton shows that even under the previous Act 30 and 31 Vict. Ch. 84 Sect. 29 objection to vaccinating a child on the ground that it was, or was bona fide believed to be, injurious to its health may be reasonable excuse under that Act. It is not however necessary to decide the point in this case because the Conviction in Criminal Revision Case. 24 must fail for another reason. It is now admitted that the petitioner had already in S. C. No. 281 of 1929 before the Magistrate been convicted and sentenced for disobeying a previous notice to produce the same child for vaccination and that this Court refused to interfere with that conviction (Crl. R. C. No. 836 of 1929). The present notices served on him on 23rd September 1929 were in fact nothing more than a repetition of the same demand though served in two forms, one as a notice to produce the child for vaccination, the other as one to discontinue his breach of the previous notice. It is clear to me that the petitioner cannot be punished, as he has been, for two offences on the same facts: (Cf Sect. 26 General Clauses Act.) Apart from that, there is the further objection in respect of the conviction in case 24, that according to the rules, once a person has been convicted for neglecting to take his child to be vaccinated under R. 11 (1) (a) his persistence in such neglect is punishable not as ‘neglect’ under that rule but as ‘continuing breach’ under R. 11 (2): Pilcher v. Stafford . The offence constituted by such persistence is really not merely neglect as such for which the offender has already suffered punishment but a continuing breach which is separately punishable under R. 11 (2) with a penalty calculated according to the period during which the offender persists in his neglect. For both reasons the conviction in case 24 is unsustainable and is set aside. The fine of Rs. 3, if paid will be refunded.
In Crl. R. C. 25 in which the petitioner has been found to have neglected to produce his child for 32 days his Advocate's argument, lucid and to the point, was that continuing to neglect to produce a child for vaccination is no offence at all. For this Pilcher v. Stafford a decision passed under 16 and 17 Vict. Ch. 100 and 24 and 25 Vict. Ch. 59 was cited. It was there decided that where a parent or person having the care, nurture, or custody of a child has incurred and paid the penalty for neglecting to have it vaccinated within the time specified by statutes, a continuous neglect to have it vaccinated is not a further breach of the statutes. But the judgment of Cockburn, C.J, shows that that was because nothing corresponding to R. 11 (2) penalising continuous neglect existed in the then statutes and as he said ‘nothing will meet it (the mischief) but fresh legislation’. In view of the clear language of R. 11 (2) the above decision is not applicable. The petition in Crl. R. C. No. 25 is dismissed.
V. C. S.