19 March 1951
Supreme Court
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RAVULA HARIPRASADA RAO Vs THE STATE.

Case number: Appeal (crl.) 15 of 1950


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PETITIONER: RAVULA HARIPRASADA RAO

       Vs.

RESPONDENT: THE STATE.

DATE OF JUDGMENT: 19/03/1951

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

CITATION:  1951 AIR  204            1951 SCR  322  CITATOR INFO :  RF         1964 SC1140  (20)  R          1965 SC 722  (11,29)  R          1966 SC  43  (4)  R          1966 SC 128  (14)  F          1971 SC 866  (13)

ACT:     Criminal  law--Mens rea--Motor Spirit  Rationing  Order, 1941,  cls. 22, 25, 27--Defence of India Rules, 1939, r.  81 (4)--Supply  of  petrol without  coupons--Omission  to  make prescribed  entries  in coupons--Liability of  employer  for acts of employees--Construction of statutes.

HEADNOTE:     Unless a statute either clearly or by necessary implica- tion rules out mens rea as a constituent part of the  crime, a  person should not be found guilty of an  offence  against the criminal law unless he has got a guilty mind.     Clauses  22 and 25 of the Motor Spirit Rationing  Order, 1941,  read  with the Defence of India Rules, 1939,  do  not rule  out the necessity of mens rea.  Therefore,  where  the employees of the licensee of a petrol filling station supply petrol to a car-owner without taking coupons and thus act in contravention  of  the provisions of the said  clauses,  the licensee, who was not present when the wrongful act was done and  had  no  knowledge of it, could not  be  convicted  for contravention  of  the said clauses under r. 81 (4)  of  the Defence of India Rules, 1939.     Clause  27  of  the said Order  is  however  differently worded  and  imposes a duty on the supplier  to  endorse  or cause  to be endorsed the registration or other  identifying mark  of  the vehicle to which petrol is  furnished  and  if these  particulars are not endorsed by his employees on  the petrol coupons against which petrol is supplied the supplier would be liable even if he had no knowledge of the  wrongful act of his employees.     Srinivas  Mall Bairolia v. King Emperor (I.L.R. 26  Pat. 46,  P.C.) and Isak Solomon Macmull v. Emperor (A.I.R.  1948 Bom. 364) referred to.

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION:Appeal (Criminal  Appeal No. 15 of 1950) from a judgment and order of the High  Court of  Madras  dated 19th August, 1947,  in  Criminal  Revision Petitions  Nos. 1017 and 1018 of 1946 rejecting an  applica- tion to set aside the conviction and sentence of the  appel- lant by the Sessions Judge of Guntur under clauses 22 and 27 of  the Motor Spirit Rationing Order, 1941.   Special  leave was 323 granted by the Privy Council and the, appeal was  originally registered as Privy Council Appeal No. 14 of 1949. The  case was subsequently transferred to the Supreme Court.     K.  Bhimasankaran (Durga Bai, with him) for  the  appel- lant.    R. Ganapathi Iyer, for the respondent.    1951. March 19.  The  judgment  of the  Court was  deliv- ered by    FAZL ALI J.--This appeal, which has been preferred  after obtaining special leave to appeal from the Privy Council, is confined  to the single question whether mens rea is  neces- sary  to constitute an offence under section 81 of  the  De- fence of India Rules.    The  facts of the case are briefly these. The  appellant is the licensee of two petrol filling stations Nos. 552  and 276  at Guntur but is a resident of Chirala, 40 miles  away. He  is a Presidency First Class Bench Magistrate at  Chirala and  manages what has been described as a vast  business  at several  places. Ch. Venkatarayudu and Dadda  Pichayya,  his employees,  were  respectively in charge  of  the  aforesaid filling stations. In 1946, the appellant and his two employ- ees  were  tried  before the  Sub-Divisional  Magistrate  of Guntur in respect of offences under the Motor Spirit Ration- ing Order, 1941, and were convicted in each of the cases  on the 18th July, 1946. In the first case, the charges  against the  appellant  and the employee in charge of  the  pump  in question  therein were that they on the 27th June, 1945,  at Guntur, supplied petrol to a cars without taking coupons, in contravention  of clause 22 read with clause 5 of  the  said Order promulgated under rule 81 (2) of the Defence of  India Rules and that they, on the same day and at the same  place, accepted  coupons  relating  to two other  cars  in  advance without  supplying petrol, in contravention of clause 27  of the  Order.   The charges in the second case were  that  the appellant  and  the employee in the  second  pump  similarly supplied  during the period of 24 hours from 6 a.m.  of  the 28th June, 1945, petrol to 4 motor vehicles 324 without  taking coupons, in contravention of clause 22  read with  clause 5, accepted coupons of three other vehicles  in advance  without issuing petrol, in contravention of  clause 27,  and supplied petrol to two other vehicles against  cou- pons but without making necessary endorsements and  particu- lars on the reverse of the coupons infringing thereby clause 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

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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 :--

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   "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-

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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

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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

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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.