JUDGMENT

R. Dayal, J. - Om Prakash and Daya Krishna Sharma have filed this revision against the order of the Sessions Judge Bulandshahr rejecting their application in revision against their conviction under sub-sec. (3) of Sec. 5 of the U. P. Entertainments and Betting Tax Act. Om Prakash is the licensee of the Damodar Talkies, Sikandrabad, district Bulandshahr, and Daya Krishna Sharma is the manager employed by him. At an inspection on the 26th of April 1955 it was found that the auditorium contained three seats more than those allowed under Condition No. 8 of the License and that three persons who had not paid the Entertainment Tax occupied them. Consequently the two applicants were prosecuted and the learned Magistrate convicted them of the offence under Sub-Sec: (3) of Sec. 5 of the Act.

2. The learned Sessions Judge observed certain irregularities which the learned magistrate had committed during the trial of the case but held that they did not prejudice the accused. I entirely agree with this view of the learned Sessions Judge. Om.Prakash was not present at the time and Daya Krishna Sharma, in answer to the question whether there were three persons without tickets in the box near the first class or the ladie's class, replied in the affirmative adding that they were of the staff. He did not allege that they had paid the Entertainment Tax. In view of this statement of his there could be no prejudice to his case by the learned magistrate committing the alleged irregularities. The conviction of the applicants is not therefore bad on this ground.

It is further contended that both Om Prakash and Daya Krishna Sharma cannot be convicted for this offence.

3. Sub-sec. (3) of Sec. 5 of the Act is:

"If any person liable to pay entertainment tax is admitted to a place of entertainment without payment of the tax leviable under Sec. 3, the proprietor of the entertainment to which such person is admitted shall, on conviction before a magistrate, be liable in respect of every such contravention to a fine not exceeding Rs. 500."

In view of sub-sec. (7) of Sec. 2 of the Act, 'proprietor' in relation to any entertainment includes any person responsible for the management thereof, and a person charged with the work of admission to an entertainment is for purposes of Secs. 4 and 5, a person responsible for the management.

4. The word 'proprietor' therefore would include not only the actual proprietor of an entertainment but also various persons who are responsible for the management thereof. The main responsibility for admitting persons inside the auditorium must primarily be of the person at the gate and secondly be of the person actually managing the show. The ultimate responsibility will be of the proprietor, that is the licensee, of the cinema. Again, a person may be admitted to, say, one class by a person in charge of admission to that class and yet, according to the definition and the general language of sub-sec. (3) of Sec. 5, the person in charge of admission to the other classes can also be held guilty for the unauthorised admission to the other class. This does not stand to reason.

5. This sub-section can mean that that person will be liable for this offence who actually admits a person without his paying the Entertainment Tax. This will be in consonance with the general principle that one does not commit an offence without mens rea. Such a person may be either the licensee or the Manager or a particular person in charge of admitting persons to that particular class. Such an interpretation however will narrow down the general language of the sub-section which by its specific terms does not limit the offence to a person who admits another to the entertainment without the payment of Entertainment Tax.

6. The other interpretation can be that, in the first instance, the proprietor of the entertainment, meaning thereby the licensee, is to be held guilty for the admission of a person without his paying the Entertainment Tax. His liability c