dedol-hf/india-case-legal-rag huggingface dataset:
27A  of  the  said Order.   The  Sub-Divisional  Magistrate,
Guntur,  found the appellant and the employee  concerned  in
each  case  guilty of the charges brought against  them  and
sentenced  the appellant (with whose case alone we  are  now
concerned)  to a fine of Rs. 30 on the first count an d  Rs.
20 on the second in the first case with simple  imprisonment
for one week in default, and to a fine of Rs. 20 on each  of
the three counts in the second case with one week's  impris-
onment  in  default. The plea of the  appellant  before  the
Magistrate  was  that he was the presiding 1st  Class  Bench
Magistrate  at Chirala, that he was carrying on business  in
petrol at various centres through servants and he had issued
instructions to them not to deviate from the rules under any
circumstances  and  that  he could not be  made  liable  for
transgression  of the rules committed by his employees.  The
Magistrate  however  overruled the plea  and  convicted  the
appellant  as  stated above. The appellant  thereafter  pre-
ferred an appeal to the Sessions Judge at Guntur, who, while
setting aside the conviction of the appellant on the  second
count in each case, confirmed the conviction and sentence in
respect  of the other charges, on the 9th  September,  1946.
This  was confirmed in revision by the High Court at  Madras
on  the 19th August, 1947. Thereupon, the appellant  applied
to the Privy Council for special leave which was granted  on
the  9th July, 1948, limited to the single question  whether
mens rea is necessary to constitute an offence under rule 81
of the Defence of India Rules.
    The  question to be decided in this appeal  arises  upon
the  plea  taken by the appellant., which has  been  already
referred  to, and the assumption on which the  courts  below
have  proceeded  in dealing with the case. The plea  of  the
appellant that he was not present at
325
Guntur when the alleged offences were committed has not been
negatived  by the lower courts, but they have held  that  he
was nevertheless liable, as the question of mens rea was not
relevant  to  the  offences with  which  the  appellant  was
charged.  This view is set out very clearly in the following
passage  which may be quoted from the judgment of the  trial
Magistrate:
    "It  is argued on behalf of accused 1 that he is  not  a
resident  of  Guntur  and that he has no  knowledge  of  any
infringement  committed by accused 2.  If any breach of  the
rules is committed by either proprietor or his servant, both
are  guilty whether they had the knowledge of the breach  or
not.   The question of mens rea will, of course, affect  the
measure  of punishment but it cannot affect  the  conviction
(vide 1943, M.L.J. 38) ."
    Before  deciding the question as to how far mens rea  is
material  to  conviction  for the offences  with  which  the
appellant is charged, it is necessary to refer to the  rele-
vant provisions of the Defence of India Rules and the  Motor
Spirit Rationing Order, 1941.  Rule 81(2) of the Defence  of
India  Rules empowers the Central or the Provincial  Govern-
ment  to  provide by order, in  certain  circumstances,  for
regulating  amongst other matters,  distribution,  disposal,
use  or consumption of articles or things and for  requiring
articles or things kept for sale to be sold either generally
or  to specified persons or classes of persons or in  speci-
fied circumstances.  The Central Government in pursuance  of
the authority thus conferred made  the Motor Spirit  Ration-
ing Order, 1941, for "securing the defence of British India,
the  efficient  prosecution of the war and  for  maintaining
supplies and services essential to the life of the  communi-
ty."  Clause 2(d) of the Order defines "dealer" as meaning a
supplier carrying on the business of supplying motor  spirit
as a retail business and includes a person having charge  of
a supply of motor spirit controlled by Government from which
any  person is furnished with motor spirit for private  use.
Sub-clause (m) defines "supplier" as meaning a person carry-
ing on the business of supplying motor
326
spirit. Clause 5, which is the next relevant provision, runs
thus :--
"Motor  spirit required for any vehicle not  covered  by
clause  3  or clause 4 shall be furnished or  acquired  only
against the surrender to a supplier at the time of supply of
valid  ordinary coupons or of a valid  supplementary  coupon
and  only in accordance with any conditions or  instructions
appearing on or attached to the coupons."
  Clause 22 lays down:
   "No  person  shall furnish or acquire a supply  of  motor
spirit  otherwise  than in accordance  with  the  provisions
contained  in  this order. "Clause 27 is  to  the  following
effect:"  No  person shall surrender to a  supplier  and  no
supplier shall accept special receipts or coupons at a  time
other  than  the time at which the supply  of  motor  spirit
authorised  by the special receipts or coupons  or  acknowl-
edged by the receipts is furnished."
   Clause 27A runs as follows :--
    "When  motor spirit is  furnished against the  surrender
of  one  or  more coupons, the  supplier  shall  immediately
endorse, or cause to be endorsed, on each coupon so  surren-
dered  the  registration or other identifying  mark  of  the
vehicle to which the motor spirit is furnished."
    Rule 81(4)of the Defence of India Rules, which  provides
for  the imposition of a penalty, says that "if  any  person
contravenes  any  order made under this rule,  he  shall  be
punishable with imprisonment for a term which may extend  to
three years or with fine or both."
It is contended on behalf of the respondent that  though
ordinarily a person should not be held liable for the crimi-
nal  acts of another and no person can be charged  with  the
commission  of  an offence unless a  particular.  intent  or
knowledge  is found to be. present, mens tea is not  of  the
essence of the offences with which we are concerned in  this
case  and the appellant must be held liable for the acts  of
his  employees. The question raised in this appeal was  con-
sidered by the Privy
327
Council  in  Srinivas Mall Bairolia v. King  Emperor(1).  In
that  case,  the  appellants  before the  Privy Council were
convicted under  the Defence of India Rules relating to  the
control of prices  and were sentenced to terms of  imprison-
ment.   The 1st appellant was acting as Salt Agent for  part
of the district of Darbhanga.  He had been appointed to this
office  by the District Magistrate, and it was his  duty  to
sell  to licensed retail dealers the supplies of salt  which
were  allocated  by the Central Government to  his  part  of
Dharbanga  district.  The second appellant was  employed  by
the first appellant and had been entrusted with the duty  of
allotting  the appropriate quantity of salt to  each  retail
dealer, and noting on the buyer's licence the quantity which
he had bought and received. By rule 81 (2) of the Defence of
India  Rules, the Provincial Governments were  empowered  to
make  orders to provide for controlling the prices at  which
articles  or things of any description whatsoever  might  be
sold. The Defence of India Act, 1939, under which the  rules
were  framed, empowered the Provincial Governments to  dele-
gate  the exercise of their powers to certain officers,  and
the power to provide by order for controlling the prices  at
which various articles (among them salt) might be sold,  had
been delegated to the District Magistrates.  Rule 81 (4)  of
the  Rules provided for the punishment of persons guilty  of
contravening  any  such  orders. Both  the  appellants  were
jointly  charged  with having sold salt on 3 days  in  July,
1943,  to three named traders, in each case at a  price  ex-
ceeding  the maximum price which had been fixed by order  of
the  District Magistrate.  The 1st appellant was also  sepa-
rately  charged, in respect of the same sales,  with  having
abetted the 2nd appellant's contravention of the order.  The
trial Magistrate acquitted the 1st appellant of the substan-
tive  offences but convicted him on the 3 charges  of  abet-
ting.  The  Sessions Judge and the High  Court  in  revision
confirmed  the  convictions.  The Privy  Council  ultimately
upheld  the conviction of the appellants on the  merits  but
with regard to the view taken by the High Court that even if
the first appellant was
(1) I.L.R. 26 Pat. 46.
328
not proved to have known of the unlawful acts of the  second
appellant,  he was still liable on the ground  that  ''where
there is an absolute prohibition and no question of mens rea
arises, the master is criminally liable for the acts of  the
servant", their Lordships observed as follows:-
    "With  due  respect to the High Court,  their  Lordships
think it necessary to express their dissent from this  view.
They see no ground for saying that offences against those of
the Defence  of India Rules here in question are within  the
limited and exceptional class of offences which can be  held
to be committed without a guilty mind.  See the judgment  of
Wright  J. in Sherras v. De Rutzen(1).  Offences  which  are
within  that  class  are usually of  a  comparatively  minor
character,  and  it  would be a surprising  result  of  this
delegated  legislation  if a person  who  was morally  inno-
cent  of blame could be held vicariously liable for a  serv-
ant's crime and so punishable ' with imprisonment for a term
which  may  extend to three years.'  Their  Lordships  agree
with the view which was recently expressed by the Lord Chief
Justice  of England, when he said: ' It is in my opinion  of
the  utmost importance for the protection of the liberty  of
the  subject that a court should always bear in  mind  that,
unless the statute, either clearly or by necessary  implica-
tion rules out mens rea as a constituent part of a crime,  a
defendant  should not be found guilty of an offence  against
the  criminal law unless he has got a guilty mind: Brend  v.
Wood(2) '"
   In our opinion, the view of the law as propounded by  the
Privy  Council is the correct view, and, applying it to  the
present  case, it is difficult to hold the appellant  guilty
of  the  offence under clause 22 read with clause 5  of  the
Motor  Spirit  Rationing   Order, 1941.    The  language  of
clause 22 does not lend support to the contention that  even
an innocent  master will  be criminally liable for an act of
his  servant. This clause has already been quoted,  but,  to
make the point clear, it may be stated that it provides that
no person shall furnish  ......  motor spirit otherwise than
in accordance
(1)  [1895] 1 Q.B. 918, 921.           (2) (1946)  110  J.P.
317, 318
329
with the provisions contained in the Order.   The clause  is
not aimed specifically against a supplier, but is general in
its language, and will hit the individual person, whether he
be the supplier or not, who contravenes the provision.   The
language  of the clause also suggests that only  the  person
who   furnishes motor spirit contrary to the  provisions  of
the Order will be affected by the contravention.
    In  the course of the arguments, reference was  made  on
behalf  of the appellant to the decision of the Bombay  High
Court in Isak Solomon Macmull v. Emperor(1) which is a  case
relating  to  the contravention of clause 22  of  the  Motor
Spirit  Rationing  Order.  In that case, the  learned  Chief
Justice,  who delivered the judgment, referred to  the  well
established rule that unless  a statute either clearly or by
necessary  implication rules out mens rea as  a  constituent
part of a crime, the defendant should not be held guilty  of
an  offence  under the criminal law unless he has  a  guilty
mind.  Relying upon this rule, he held that where a  servant
sells petrol to a bogus customer in the absence of coupons m
contravention  of the Motor Spirit Rationing Order, and  the
master  is not present at the time nor has he any  knowledge
of the supply of petrol by the servants to the bogus custom-
er,  the master cannot be held to be vicariously liable  for
the  act of the servant.  In our opinion, this  decision  is
correct and is directly applicable to the present case.
    We have yet to deal with the third charge in the  second
case, which relates to the infringement of clause 27A of the
Motor Spirit Rationing Order. That clause, as already  stat-
ed,  makes  it incumbent upon the supplier  to  endorse,  or
cause to be endorsed, the registration or other  identifying
mark of the vehicle to which the motor spirit is  furnished.
The substance of the charge on which the appellant has  been
convicted  is  that these particulars were not  endorsed  on
several   coupons  against which petrol had  been  supplied.
Here again, the main contention put forward on behalf of the
 (1) A.I.R. 1948 Bom. a64.
43
330
appellant  was  that  the appellant cannot  be  held  guilty
inasmuch as the default in question was committed not by him
personally,  but  by  his servants.  Having  regard  to  the
language  of the clause, however, this contention cannot  be
accepted.  Clause 27A, as we have already seen,  throws  the
responsibility  for making the necessary endorsement on  the
supplier.  The definition of the word 'supplier' in the  Act
has  already been quoted, and there can be no doubt that  if
clause  27A  is contravened, a person who comes  within  the
definition of the word 'supplier' must be held guilty of the
contravention.   The object of this clause clearly  is  that
the supplier of petrol should set up a complete machinery to
ensure  that  the  necessary endorsements are  made  on  the
coupons against which petrol is supplied.  It is conceivable
that  in  many cases the default will be  committed  by  the
servants  of the supplier, who are in charge of  the  petrol
pump, but that fact by itself will not exonerate the suppli-
er from liability.
    In   Mousell  Brothers  v.  London   and   North-Western
Railway('), Viscount Reading C.J., dealing with a case under
the  Railways Clauses Consolidation Act, 1845,  observed  as
follows :--
    "Prima facie, then, a master is not to be made criminal-
ly  responsible  for the acts of his servant  to  which  the
master  is not a party. But it may be the intention  of  the
Legislature, in order to guard against the happening of  the
forbidden thing, to impose a liability upon a principal even
though he does not know of, and is not party to, the forbid-
den  act done by his servant. Many statutes are passed  with
this object. Acts done by the servant of the licensed holder
of  licensed  premises render the licensed  holder  in  some
instances liable, even though the act was done by his  serv-
ant without the knowledge of the master.  Under the Food and
Drugs  Acts  there are again instances well known  in  these
Courts where the master is made responsible, even though  he
knows nothing of the act done by his servant, and he may  be
fined  or rendered amenable to the penalty enjoined  by  the
law. In those
[1) [1917] 2 K.B.D. 836 at 844.
331
cases  the Legislature absolutely forbids the act and  makes
the principal liable without a mens rea."
    In  the same case, Atkin J. expressed the same  view  in
these words :--
    "I  think that the authorities cited by my Lord make  it
plain  that while prima facie a principal is not to be  made
criminally responsible for the acts of his servants, yet the
Legislature  may prohibit an act or enforce a duty  in  such
words  as to make the prohibition or the duty  absolute;  in
which  case  the principal is liable if the act is  in  fact
done by his servants.  To ascertain whether a particular Act
of  Parliament has that effect or not regard must be had  to
the object of the statute, the words used, the nature of the
duty  laid  down, the person upon whom it  is  imposed,  the
person  by whom it would in ordinary circumstances  be  per-
formed, and the person upon whom the penalty is imposed.  If
authority  for  this is necessary it will be  found  in  the
judgment of Bowen L.J. in Reg. v. Tylor(1).''
    In  Mullins  v. Collins(2), the servant  of  a  licensed
victualler  having knowingly supplied liquor to a  constable
on  duty without the authority of his superior  officer,  it
was  held  that  the licensed victualler was  liable  to  be
convicted  although  he had no knowledge of the act  of  his
servant.   In dealing with the case, Blackburn  J.  observed
thus:-
"If  we hold that there must be a personal knowledge  in
the  licensed  person, we should make the  enactment  of  no
effect."
    There are many other cases in England in which the  same
view  has been enunciated, and some of them have  been  col-
lected and classified in the judgment of Wright J. in  Sher-
ras v. De Rutzen(3),  The principle laid down in these cases
has been followed in several cases in this country also.
    In  this view, the appeal is allowed in part, and  while
the conviction and sentence imposed on the
(1) [1991] 2 Q B 588.       (3)[1895] IQB. 918,922.
(2) [1874] L.,R. 9 Q. B. 292
332
appellant on the first charge in both the cases are quashed,
the  conviction  and  sentence on the third  charge  in  the
second case are affirmed.
                 Appeal  allowed  in  part.
  Agent  for the appellants: S. Subramanian.
  Agent for the respondent: P.A. Mehta.
PETITIONER:
R.R. CHARI
        Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH.
DATE OF JUDGMENT:
19/03/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
DAS, SUDHI RANJAN
CITATION:
 1951 AIR  207            1951 SCR  312
 CITATOR INFO :
 R          1959 SC 118  (8)
 D          1959 SC 433  (8)
 R          1961 SC 986  (7)
 RF         1963 SC 765  (19)
 RF         1964 SC1541  (8)
 R          1966 SC 220  (4)
R          1966 SC 595  (19)
 RF         1972 SC2639  (35)
 RF         1977 SC2401  (7)
 R          1978 SC 188  (7)
 R          1979 SC 777  (14)
ACT:
     Indian Penal Code (XLV of 1860), ss. 161,   165--Crimi-
nal  Procedure Code, 1898, ss. 190, 197--Prevention of  Cor-
ruption  Act (11 of 1947), ss. 3, 6--Offence. under ss.  161
and 165, I.P.C.--Warrant issued by Magistrate during  inves-
tigation  by police--Sanction under s. 197,  Cr. P.C.,   not
obtained  before  issuing  warrant-Legality  of  trial--When
Magistrate takes "cognisance" of offence.
HEADNOTE:
    Under s. 3 of the Prevention of Corruption Act. 1947, an
offence  punishable  under s. 161 or s. 165  of  the  Indian
Penal Code
313
is  a  cognisable offence for the purposes of  the  Criminal
Procedure  Code  subject to the condition  that  the  police
shall  not investigate without an order of a  magistrate  of
the  first  class or make an arrest without a  warrant;  and
when the police apply for a warrant of arrest during  inves-
tigation  under  s.  3 of the said Act  and  the  magistrate
issues a warrant, he is not deemed to have taken  cognisance
of the case under s. 190 of the Criminal Procedure Code  and
the fact that sanction of the Government under s. 197 of the
Criminal  Procedure  Code had not been obtained  before  the
warrant  was  issued would not vitiate  the  trial.   Having
regard to the wording of s. 3 of the said Act the view  that
the magistrate can issue a warrant only after taking congni-
sance of the offence under s. 190 of the Criminal  Procedure
Code, is unsound.
Before it can be said that a magistrate has taken cogni-
sance  of  an offence under s. 190 (1) (a) of  the  Criminal
Procedure  Code, he must not only have applied his  mind  to
the  contents of the petition but have done so for the  pur-
pose  of proceeding under s. 200 and the  subsequent  provi-
sions  of  the  Code.  Where he applied his  mind  only  for
ordering investigation or issuing a warrant for purposes  of
investigation he cannot be said to have taken cognisance  of
the offence.
    Emperor v. Sourindra Mohan Chuckerbutty (I.L.R. 37  Cal.
412) distinguished.  Observations of Das Gupta J. in  Super-
intendent and Remembrancer of Legal Affairs, West Bengal  v.
Abani Kumar Banerjee (A.I.R. 1950 Cal. 437) approved.
Gopal Mandari v. Emperor (A.I.R 1943 Pat. 245) referred to.
JUDGMENT:
    CRIMINAL APPELLATE JURISDICTION: Appeal (Criminal Appeal
No.  1 of 1950) by special leave from an order of  the  High
Court of Allahabad.
    N.P.  Asthana, and N.C. Chatterjee (K.B.  Asthana,  with
them) for the appellant.
    P.L. Banerjee  (Sri Ram,  with him)  for the respondent.
    1951.   March 19.  The judgment of the Court was  deliv-
ered by
    KANIA C.J.--This is an appeal by  special leave  against
an order of the Allahabad High Court dismissing the revision
petition  of the appellant against the order of the  Special
Magistrate  refusing to quash the proceedings on the  ground
that  the  prosecution  of the appellant  inter  alia  under
sections 161 and 165 of
314
the  Indian Penal Code was illegal and without  jurisdiction
in  the  absence  of the sanction of  the  Government  under
section 107 of the Criminal Procedure Code and section 6  of
the  Prevention of Corruption. Act (II of  1947),  hereafter
referred  to as the Act.  The material facts are these.   In
1947  the appellant held the office of Regional Deputy  Iron
and Steel Controller, Kanpur Circle, U.P., and was a  public
servant.   The police having suspected the appellant  to  be
guilty of the offences mentioned above applied to the Deputy
Magistrate, Kanpur, for a warrant of his arrest on the  22nd
of  October,  1947, and the warrant was issued on  the  next
day.   The  appellant was arrested on the 27th  of  October,
1947, but was granted bail.  On the 26th of November,  1947,
the District Magistrate cancelled his bail as the Magistrate
considered that the sureties were not proper.  On the 1st of
December,  1947, the Government appointed a  Special  Magis-
trate to try offences under the Act and on the 1st December,
1947,  the appellant was produced before the Special  Magis-
trate  and  was  granted bail. The  police  continued  their
investigation.   On the 6th of December, 1948, sanction  was
granted by the Provincial Government to prosecute the appel-
lant inter alia under sections 161 and 165 of of the  Indian
Penal Code.  On the 31st January, 1949, sanction in the same
terms was granted by the Central Government. In the meantime
as  a result of an appeal made by the appellant to the  High
Court of Allahabad the amount of his bail was reduced and on
the 25th of March, 1949, the appellant was ordered to be put
up before the Magistrate to answer the charge-sheet  submit-
ted by the prosecution.
    On  behalf of the appellant it is argued that  when  the
warrant  for his arrest was issued by the Magistrate on  the
22nd of October, 1947, the Magistrate took cognizance of the
offence  and,  as  no sanction of the  Government  had  been
obtained before that day, the initiation of the  proceedings
against him, which began on that day without the sanction of
the  Government,  was illegal. It is argued  that  the  same
proceedings  are  continuing against him and  therefore  the
notice to
315
appear before the Magistrate issued on 25th March, 1949,  is
also illegal.  In support of his contention that the  Magis-
trate  took cognizance of the offences on 22nd March,  1947,
he relies principally on certain observations in Emperor  v.
Sourindra Mohan Chuckerbutty(1).
    It  is therefore necessary to determine when the  Magis-
trate  took cognizance of the offence. The relevant part  of
section   190  of  the  Criminal  Procedure  Code  runs   as
follows:--
    190. (1)"Except as hereinafter provided, any  Presidency
Magistrate, District Magistrate or Sub-divisional Magistrate
and any other Magistrate specially empowered in this behalf,
may take cognizance of any offence--
    (a) upon receiving a complaint of facts which constitute
such offence;
    (b)  upon a report in writing of such facts made by  any
police officer;
    (c) upon information received from any person other than
a  police officer, or upon his own knowledge  or  suspicion,
that such offence has been committed..."
    It  is  clear from the wording of the section  that  the