JUDGMENT

Khundkar, J. - This is a rule to show cause why the conviction of the petitioner u/s 6 of Act 1 of 1920 should not be set aside on the ground that the learned Magistrate erred in law in making a new case and convicting the petitioner of being the owner of the animal although there was no such allegation and the trial had not proceeded on any such footing. The case for the prosecution was that the petitioner and another person had performed the illegal operation known as phooka upon a milch buffalo. The Section in question, Section 6, Bengal Cruelty to Animals Act (being Bengal Act 1 of 1920) is in these terms:

If any person performs upon any cow or other milch animal the operation called phuka he (shall be deemed to have committed a cognizable offence and) shall be punished with fine which may extend to (five) hundred rupees or with imprisonment for a term which may extend to (two years), or with both, and the owner of the cow or other milch animal and any person in possession of or control over it shall be liable to the same punishment (and the cow or the milch animal on which the operation of phuka was performed shall be forfeited to Government).

2. Now, it is clear that t