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A-ugust 18and 19.
P. C., Batticaloa, No. 11,089.
Vaccination—Ordinance No. 20 of 1886, »s. 6 and 15—Omission to takechild for vaccination—Section 289 of the Ceylon Penal Code—Breaches of duty under s. 6 of Ordinance No. 20 of 1886—Trial ofseveral accused at the same time therefor—Criminal ProcedureCode, s. 201.
The omission on the part of a parent or guardian to take or causeto be taken a child for vaccination or re-vaccination as required bysection 6 of Ordinance No. 20 of 1886, is not an offence punishableunder section 15 of that Ordinance. It falls within the purview of •section 289 of the Ceylon Penal Code. •
It is irregular to charge and try more than one person in the samecase for breaches of duty imposed by section 6 of Ordinance No. 20of 1886.
rJ^HE facts of the case appear in the judgment.
Jayawardena, for appellant.
Cur. adv. vult.
19th August, 1896. Withers, J.—
Defendant in this case has been convicted of an 'offence underclauses 6* and 15f of Ordinance No. 20 of 1886, in that he, beingthe father of an unvaccinated child two years old, failed to producethe said child, for the purpose of being vaccinated, to the officerwho attended to vaccinate at the complainant’s house on the 12th.of June last between 8 and 10 a.m., an offence, if one, punishableunder section 15 of the said Ordinance with a maximum fine of-Rs. 10.
* “ Every child who has nomarks of successful vaccination orof smallpox, or who, if he has suchmarks, resides in a house or build-ing in which there is a .patientsuffering from smallpox, shall betaken or caused to be taken byhis parent or guardian to the placeso appointed nearest the residenceof such child for the purposeof being vaccinated or re-vacci-nated.”
t “ Every adult who shall notcause himself to be vaccinated,and every parent or guardian whoshall not cause the child under hiscare , to be .vaccinated (such adultor child not being certified to be inan unfit state for, or insusceptibleof, vaccination), or who shall noton the day fixed by section 9 afterthe vaccination has been per-
formed (in the case of the adult)present himself, or (in the .case ofthe parent or guardian) take orcause to be taken the child forinspection according to the pro-visions in this Ordinance res-pectively contained, and everyperson who acts in contraventionof, or fails to comply with the pro-visions of sections 7 and 8, or anyregulations duly made under sec-tion 16, or who binders or obstructsany one in the discharge of any ■duty imposed upon him by thisOrdinance or by any regulationduly made under section 16,and every officer who wilfully signsany false certificate under thisOrdinance, shall be guilty of. anoffence, and be liable to a fine notexceeding rupees ten.”
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It was argued in the first place that this was an order appealable 1898.as of right, because if it came within section 405 of the Criminal
Procedure Code there could never be an appeal at all under section
15 of the Vaccination Ordinance, and this could not have been WrrHEB3> Jintended. But that it comes within the purview of section 405 ofthe Criminal Procedure Code is clear from the 400th section of thesame Code.
A point of law was taken in the petition of appeal, that the noticereferred to in the judgment was not proved so as to affect thedefendant with the offence charged.
That point was not pressed upon me by counsel, and the recorddiscloses that there was sufficient proof of notice to bind the defend-ant. The point pressed upon me in appeal was that the breachof a parent’s duty to take or cause to be taken to the duly appointedplace for vaccination a child who has no marks of successfulvaccination or of smallpox, imposed on him by the 6th section ofthe Vaccination Ordinance, is not an offence punishable under the15th section of that Ordinance.
In support of this argument counsel relied on a ruling of my ownin a case brought up in revision from the Police Court of Anuradha-pura, to be found in the Civil Minutes of 11th January, 1894. In myjudgment I quashed the order in that caste for two reasons, the prin-cipal reason being that some eight defendants were charged andtried at one trial for similar breaches of duty in violation of section.. 207 of the Criminal Procedure Code, which enacts that separateoffences, such as those clearly were, must be separately tried. .Thesecond reason is expressed in these words : “ Further, the omission.. “ to produce the children whose names were included in the list for“ vaccination at a certain place of vaccination is not one of the“ offences mentioned in section 15 of the Vaccination Ordinance.
“Counsel are unable to explain to me where this so-called offence is to“ be found.” That opinion was perhaps an obitur dictum. Onfurther examination I am still inclined to hold to that opinion,though I think the matter is not wholly free from doubt.
Sectioi) 6 of the Ordinance imposes a duty on the parent orguardian of the child to take it to the place duly appointed nearestthe residence of such child for the purpose of being vaccinated orre-vaccinated any child who has no marks of successful vaccinationor smallpox, or who, if it has any marks, resides in a house or buildingin which there is a patient suffering froiA smallpox.
Section 9 imposes further duties on a parent or guardian of thechild which has been vaccinated or re-vaccinated at the time and
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August ISand 19.
place appointed in the notice under section 4. One duty is thatupon the same day of the week following the day on which a childhas been vaccinated or re-vaccinated, the parent or guardian shouldagain take or' cause to be taken such child to the same place at thesame hour as before, in order that-the officer in attendance may ..ascertain by inspection the result of such vaccination.
The other duty is that in the event of the vaccination beingunsuccessful, such parent or guardian shall cause such child, if theofficer so directs, to be forthwith again vaccinated and inspected .as on the previous occasion. Mark the distinction of these duties:one is to take a child to the place for the vaccination to treat as thelaw permits or enjoins him ; the other is to cause the child to beforthwith again vaccinated if the officer so directs.
Now, the breaches of the duties mentioned in the 15th section,and which are made fineable offences thereunder, do not seem toembrace the duty imposed on a parent or guardian under section 6.Under the 15th section every parent or guardian who shall notcause the child under his care to be vaccinated shall be guilty ofan offence. Causing a child to be vaccinated answers exactly tothe duty imposed on the parent or guardian under clause 9.
Again, a parent or guardian who shall not, on the day fixed bysection 9 after the vaccination has been performed, take or causeto be taken the child for inspection, shall be guilty of an offence.
That is the other duty imposed by section 9 to which I havealluded, and the distinctive character of the duties is there marked.
Then, again, every person who acts in contravention of, or failsto comply with section 8, and any regulation made under section16, &c., shall be guilty of an offence, and shall be liable to a finenot exceeding Rs. 10.
Hence it appears to me that the duty required by section 6 ofthe Ordinance was for some reason or other omitted from section15 by the Legislature. It may be that the Legislature thought thata more important duty than any one specified in section 15 of theOrdinance, and left it to be dealt with under the provisions ofsection 289 of the Penal Code, which enacts as follows :—
“ Whoever wilfully neglects or omits to perform any duty imposed“ upon him by, or wilfully disobeys or infringes, any provision of any“ Ordinance or statute heretofore or hereafter to be enacted, for“ which neglect, omission, disobedience, or infringement no punish -“ ment is or shall be by this Code or any other Ordinance or statute“ otherwise specially provided, shall be punished with a fine.”
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It may be thought that the breach of the duty under section 189016 should in certain circumstances be marked by a fine exceeding
Rs. 10..—r ’
Now, in the case before me, I think it proper to affirm the jndg-’
ment, though, properly speaking, it is an offence punishable undersection 289 of the Penal Code.
I do so because there was sufficient evidence before the Magis-trate that the appellant knew of the appointed time and place, andunlawfully omitted to take the child there for the purpose of beingvaccinated, the place appointed being the nearest one to the residenceof the child, and the child having no marks of successful vaccination.