02 March 1951
Supreme Court
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D. STEPHENS Vs NOSIBOLLA

Case number: Appeal (crl.) 19 of 1950


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PETITIONER: D. STEPHENS

       Vs.

RESPONDENT: NOSIBOLLA

DATE OF JUDGMENT: 02/03/1951

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND MUKHERJEA, B.K.

CITATION:  1951 AIR  196            1951 SCR  284  CITATOR INFO :  RF         1954 SC 266  (11)  F          1955 SC 584  (3)  R          1962 SC1788  (4)  R          1968 SC 707  (8)  R          1970 SC 272  (10)  RF         1973 SC2145  (4,8,9)  R          1975 SC 580  (4)  R          1978 SC   1  (15)  R          1986 SC1721  (9)

ACT:     Criminal  Procedure Code, 1898, ss.  417,  439--Revision against  order of  acquittal--Interference--Guiding  princi- ples--Indian  Merchant  Shipping Act, XXI of 1923,  ss.  25, 26--Supply  of  seamen-Constitution of Board  by  owners  of ships  and  seamen for recruitment of  seamen--Levy  of  one rupee  from each seaman towards expenses  of  Board--Whether contravenes  ss. 25,  26--Giving of muster  card  permitting appearance  at  muster--Whether  amounts  to  "engaging   or supplying" seamen.

HEADNOTE:     The revisional jurisdiction conferred on the High Court under s. 439 of the Code of Criminal Procedure is not to  be lightly exercised when it is invoked by a private  complain- ant against an.order of acquittal, against which the Govern- ment has a right of appeal under s. 417.  It could be  exer- cised  only  in  exceptional cases where  the  interests  of public justice require interference for the correction of  a manifest illegality or the prevention of a gross miscarriage of justice.  This jurisdiction is not ordinarily invoked  or used  merely because the lower Court has taken a wrong  view of the law or misappreciated the evidence on the record.     Shipowners  had an organisation in Calcutta  called  the Calcutta Liners’ Conference and the seamen had an  organisa- tion 285 called the Joint Supply Office.  As a result of a collective agreement  between  the  owners of  the ships and the   sea- men’s  representatives,  the Calcutta Maritime  Board  which

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contained  an equal number of members representing the  Cal- cutta  Liners’  Conference and the Joint Supply  Office  was established.   The seamen presented themselves  before  this Board  and were given muster cards which permitted  them  to appear  at the musters where the captains of the  ships  en- gaged seamen.  For meeting the office expenses of the  Board the  owners used to pay Rs. 2 per seaman engaged  and  after engagement  each seaman paid Re. 1 to the owner as his  con- tribution  towards  these  expenses.  The  accused  was  the secretary of the Liners’ Conference and an ex officio honor- ary  joint  secretary of the Maritime Board,  and  a  seaman filed a complaint against him that, as he had collected  Re. 1  from him for the issue of a muster card he had  committed an  offence under s. 26 (2) of the Indian Merchant  Shipping Act:     Held,  that  the seamen to whom the  master  cards  were given  by the Maritime Board were not "engaged or  supplied" by  the Board or by any of its officers, nor was the sum  of Re.  1 which was levied out of the seaman’s wages  after  he signed an agreement of employment, remuneration received for providing  the man with employment, and the accused was  not guilty of any offence under s. 25 or s. 26 of the Act.

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION  :  Appeal   (Criminal Appeal No. 19 of 1950) against the orders of the High  Court of Judicature at Calcutta dated 21st January, 1949, and 29th August,  1949, in Criminal Revision Cases Nos. 1007 of  1948 and 527 of 1949.     S.P.  Sinha (S. N. Mukherjee, with him) for  the  appel- lants. B. Sen for the respondent.     1951.  March 2. The judgment of the Court was  delivered by CHANDRASEKHARA  AIYAR J.--This appeal comes up before us  on special leave granted by His Majesty’s Order in Council  and it  is directed against orders made by the Hon’ble Mr.  Jus- tice Sen of the High Court of Judicature at Fort William  in Bengal,  directing a retrial of the appellant  D.  Stephens, who had been acquitted by the Chief Presidency Magistrate of contravening  the  provisions of section 26  of  the  Indian Merchant Shipping Act. 286     The  facts that gave rise to this prosecution  are  cor- rectly  set out in the  following two paragraphs  which  are quoted  from  the judgment of the learned  Chief  Presidency Magistrate:--     " The owners of the ships have an organisation known  as the  Calcutta Liners’ Conference.  The seamen have an organ- isation know as the Joint Supply Office.  Since 1940-41  the licensed  broker  system for engagement of seamen  had  been abolished.  The Calcutta Maritime Board was established as a result  of a collective agreement between the owners of  the ships and seamen’s representatives for recruiting seamen. It is a joint negotiating machinery between the owners and  the seamen  for direct engagement of seamen by the owners.   The Joint Supply Office does not supply the seamen.  The Calcut- ta  Maritime Board also does not supply nor  engage  seamen. The  engagement is made by the Captains of the  Ships.   The Calcutta  Maritime ,Board, at the relevant time, was  formed of  equal members representing the Calcutta Liners’  Confer- ence (the owners) and the Joint Supply Office (the  seamen). At  the  present  moment the Government of  India  have  two

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representatives  in the Calcutta Maritime Board.  There  are two Joint Chairmen and two joint Secretaries, one each  from each  group  of the owners’  and  seamen’s  representatives. Accused  Stephens is the Secretary of the  Calcutta  Liners’ Conference and is a paid officer.  His salary is paid by his employers,  the Calcutta Liners’ Conference, with  contribu- tions  obtained from the owners of the ships whose  associa- tion  the  Conference is. The accused is one  of  the  Joint Secretaries  of the Calcutta Maritime Board in his  capacity as  the Secretary of the Calcutta Liners’  Conference.   The Joint   Secretaries  of  the Calcutta  Maritime  Board  hold honorary posts and receive no remuneration."      "The  procedure for recruitment now is that the  seamen present themselves before the Calcutta Maritime Board.  They are  given muster cards which permit them to appear  at  the musters  where the Captains of the ships engage the  seamen. The Board 287 endeavours  to lay down a procedure for the Captains of  the ships while engaging seamen. There is an excess of supply of seamen  over the demand. This had brought in corruption.  To fight  out corruption, the Calcutta Maritime Board was  con- ceived  to find out a procedure for the owners of the  ships for  employing seamen by rotation.  For meeting  the  office expenses  of the Calcutta Maritime Board the owners, at  the relevant  time used to pay Rs. 2 per seaman engaged.   After signing  on, each seaman pays back the owners Re. 1  as  his contribution  towards office expenses of the Calcutta  Mari- time  Board.  None of the facts stated above  was  contested for the complainant."     The  complainant Nosibolla alleged that the  accused  as Joint Secretary of the Board collected an illegal charge  of Rupee  one  from  him for issue of a muster  card  and  thus contravened  section 26 of the Indian Merchant Shipping  Act and that he was, therefore, guilty of an offence within  the meaning of sub-clause (2) of that section. The Chief  Presi- dency Magistrate acquitted the accused of the charge but  on revision  the  High Court at Calcutta  directed  a  retrial, holding that the accused clearly contravened the  provisions of section 25 of the Act, and that if the complainant was to be  believed  when he said that the accused received  Re.  1 before registration, he was also guilty under section 26  of the Act; and both parties were allowed to adduce  additional evidence.  This second trial again ended in an acquittal  by the  Chief Presidency Magistrate who came to the  conclusion that  the accused did not supply or engage seamen,  that  he did not receive any payment of Re. 1 for issuing the  muster card  to the complainant and that Re. 1 which  is  collected from the seamen by the shipowners after employment by way of deduction  from  wages is paid not as  remuneration  to  the accused  or any one else, but is really a  contribution  to- wards the expenses of the Joint Supply Office working  under the  Calcutta  Maritime Board. There was  again  a  revision petition  taken  to  the High Court against  this  order  of acquittal  and  it was heard by the same  learned  Judge  as before. He differed from 288 the  Chief Presidency Magistrate on all the material  points and sent the case back again for a fresh trial in a judgment which  contains findings almost amounting to a direction  to the  Chief Presidency Magistrate to convict the accused.  In the  learned  Judge’s  view the issue of a  muster  card  to seamen amounted to the "supply" of seamen within the meaning of section 25 of the Act. The receipt of Re. 1 was a  demand for  remuneration within the meaning of section 26, even  if

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it  was ultimately spent for expenses of the running of  the Joint  Supply Office and that a demand for payment would  by itself constitute the offence, whether the money was actual- ly received or not.     It  is  against this interference in revision  that  the present  appeal was lodged before the Judicial Committee  of the  Privy  Council on the ground that the  jurisdiction  to direct a retrial was so exercised in the case as to  consti- tute.  an infringement of the essential principles  of  jus- tice.     Before   entering into  a short discussion of the  ques- tion  whether the view taken by the High Court is  right  or wrong,  it would be useful to set out the relevant  sections of the Merchant Shipping Act.     "24.  (1)  The  Central Government or  any  person  duly authorised  by  the Central Government in  this  behalf  may grant  to  such  persons as may be deemed  fit  licences  to engage or supply seamen for merchant ships in British India.     (2) Any such licence shall continue for such period, and may  be granted and revoked on such terms and conditions  as the Central Government thinks proper.     25.  (1) A person shall not engage or supply a seaman to be  entered on board any ship in British India  unless  that person  either holds a licence under this Act for  the  pur- pose,  or is the owner or master or mate of the ship, or  is bona  fide the servant and in the constant  employ   of  the owner, or is a shippingmaster.     (2) A person shall not employ, for the purpose of engag- ing a seaman to be entered on board any ship 289 in British India, any person unless that person either holds a licence under this Act for the purpose. or is the owner or master or mate of the ship, or is bona fide the servant  and in  the constant employment of the owner, or is  a  shipping master.     (3)  A person shall not receive or accept to be  entered on  board any ship any seaman if that person knows that  the seaman has been engaged or supplied in contravention of this section.     (4) If a person acts in ’contravention of this  section, he  shall for each seaman in respect of whom an  offence  is committed  be liable to a fine which may extend to one  hun- dred  rupees, and,  if a licensed person, shall forfeit  his licence.     26. (1) A person shall not demand or receive directly or indirectly,  from  any seaman, or from  any  person  seeking employment  as a seaman, or from any person on  his  behalf, any remuneration whatever for providing him with  employment other than the fees authorised by this Act.     (2)  If a person acts in contravention of this  section, he  shall for each such offence be liable to pay a  fine  of fifty  rupees, and, if a licensed person, shall forfeit  his licence."     On  the facts as admitted or proved in the evidence,  it is difficult to see what offence the accused has  committed. Neither  the Calcutta Maritime Board, nor the Calcutta  Lin- ers’ Conference supply the seaman. The registration entitles the  seamen to get muster cards which enable them to  appear at the musters, and there, the Captains of the ships  select and  engage  the  seamen.  It is after  this  selection  and engagement that the body of shipowners, called the  Calcutta Liners’ Conference, pay Rs. 2 to the Calcutta Maritime Board out  of which Re. 1 is their Own contribution and Re.  1  is the  contribution  by the seaman which is deducted from  his wages.  There is therefore no supply of a seaman within  the

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meaning of section 25 of the Act.  A number  of seamen offer themselves for employment and they are all gathered together at a 290 place,  so  that the shipowner or Captain of  the  ship  may select whomsoever he pleases.  There is no obligation on the owners of the ships to select any particular person, nor  is any such selection made by the Maritime Board either direct- ly or through its servants for the benefit of the owners and for  employment under them. The Calcutta Maritime  Board  of which  the  accused  is an honorary Joint  Secretary  is  an institution  that was created in the end of 1947,’ with  the knowledge,  ii not the approval, of the Government of  India as a liaison body or institution to bring the owners and the seamen together, with reference to the engagement of  seamen for  ships.  The labour corps is brought into  contact  with the owners by the  Maritime  Board through the Joint  Supply Office  but the seamen are engaged by the shipowners or  the Captains.  To a certain extent, the recruitment is regulated by the Maritime Board, but it is a misnomer to say that  the seamen are supplied to the owners by the Board or by any  of its officers.  In his written statement found at page 28  of the  printed  book  the accused has stated, and  it  is  not controverted anywhere, that the system of selection of  crew through the agency of Serangs was brought to an end owing to the opposition of the seamen themselves, who alleged that it resulted  in widespread corruption as the Serangs  recruited only those who paid them heavily.     It is fantastic for the prosecution to suggest that  Re. 1 levied out of the seaman’s wages after he signs the agree- ment  of  employment amounts to  remuneration  received  for providing the man with employment.  The remuneration paid to the  accused  which is over Rs. 2,000 a month is by  way  of salary from the Calcutta Liners’ Conference under whom he is a paid Secretary.   The Calcutta Maritime Board receives Re. 1  per seaman from the shipowners’ association, but this  is by  way  of contribution towards the expenses of  the  Joint Supply Office of the Board.  This is made perfectly clear in the  evidence  given on commission by Mr.  C.P.  Srivastava, Officer  on Special Duty, Ministry of Commerce,  New  Delhi, and of 291 Mr. Dikken examined on the side of the prosecution who  says that  the contribution is made to meet the running  expenses of  the Joint Supply Office  and Maritime Board.  Mr.  Gold- well  of James Finlay & Co., sixth witness for the  defence, has  stated that the Calcutta Maritime Board and  the  Joint Supply   Office  are  financed by the Liners  and  that  the accused has nothing to do with the engagement of the seamen. There is also a finding of the Chief Presidency  Magistrate, which  has  not been set aside, that the allegation  of  the complainant  that the accused received Re. 1 from him  prior to registration of his name in the Joint Supply Office,  has not been substantiated.     It  is  evident on the facts that the accused  does  not engage  or supply any seamen and does not demand or  receive directly  or indirectly any remuneration for  providing  any person with employment as a seaman. The facts leave no  room for  any doubt that the prosecution has failed to  establish its case.     Mr.  Justice Sen says "I fully realise that,  ordinarily this Court ought not to interfere with orders of  acquittal. It should do so only on exceptional grounds." It is a matter of  some  regret that this realization by him of  the  very. limited  nature of the revisional jurisdiction was not  car-

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ried  into  effect but resulted in an  order  directing  the retrial  of a man for a third time for offences which  could not be said to have been made out even prima facie.     The revisional jurisdiction conferred on the High  Court under  section 439 of the Code of Criminal Procedure is  not to  be  lightly exercised, when it is invoked by  a  private complainant against an order of acquittal, against which the Government has a right of appeal under section417. It  could be  exercised only in exceptional cases where the  interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross  miscar- riage  of  justice.   This jurisdiction  is  not  ordinarily invoked  or used merely because the lower court has taken  a wrong view of the law or misappreciated the evidence 38 292 on  record. As already pointed out, there has been  no  such error in the present case; on the other hand, it seems to us that  on both the previous occasions, the  Chief  Presidency Magistrate  was  right in holding that the accused  was  not guilty of any offence under sections 25 and 26 of the Indian Merchant Shipping Act.     The order of the High Court is set aside and that of the Chief  Presidency Magistrate is restored. The  accused  will stand acquitted of the charge.                                       Order set aside. Agent for the appellant: P.K. Chatterjee. Agent for the respondent: 1. N. Shroff for P.K. Bose.