State of Gujarat & ANR Vs. Acharya
D. Pandey & Ors  INSC 211 (12 October 1970)
12/10/1970 HEGDE, K.S.
CITATION: 1971 AIR 866 1971 SCR (2) 557 1969
SCC (3) 349
Bombay Public Trust Act 1950 ss. 35(1),
66-Scope of-Mens Rea-If necessary ingredient.
On the allegations, that the 1st accused, who
was the Acharya of a public trust withdrew monies from the trust fund to meet
his tax liabilities, that the other accused as trustees connived at the
contraventions of the law, and that the monies were reimbursed later, the
accused were convicted under ss. 35(i) and 66 of the Bombay Public Trust Act,
In appeal, the High Court acquitted, the
accused, holding that the requisite mens rea was not proved against the 1st
accused, and that the other accused were not trustees at the time of the
alleged offence. Dismissing the appeal,
HELD : The broad principles accepted by
Courts with regard to the question whether a crime can be said to have been
committed without the necessary mens rea. are : Where an offence is created by
statute, however, comprehensive and unqualified the language of the statute, it
is usually understood as silently requiring that the element of mens rea should
he imported into the definition of the crime, unless a contrary intention is
expressed or implied. In other words, the plain words of statute are read
subject to a presumption, which may be rebutted, that the general rule of law
that no crime can be committed unless there is mens rea has not been ousted by
the particular enactment. Mens rea means some blameworthy mental condition,
whether constituted by knowledge or intention or otherwise. But this rules has
several exceptions. [560 H] The principal classes of exceptions may be reduced
One is a class of acts which are not criminal
in any real sense, but are acts which in the public interest prohibited under a
penalty. Another class comprehends some, and perhaps all, public nuisances.
Lastly, there may be cases in which although the proceeding is criminal in
form, it is really only a summary mode of enforcing a civil right. But except
in such cases as these, there must in general be guilty knowledge on the part
of the defendant, or of some one whom he has put in his place to act for him, generally
or in the particular matter in order to constitute and offence. The present
case falls within the first category [561 G] Section 35(1) of the Bombay Public
Trust Act creates a quasi-criminal offence. It is a regulatory provision. It is
enacted with a view to safeguard the interest of the public regarding trust
money. The offence in question is punishable only with fine. The conviction
under that does not carry any stigma. The language of the provision appears to
make its contravention an absolute liability.
Consequently the requirement of mens rea
cannot be read into it. [563 A]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeals Nos. 2 to 12 of 1968.
558 Appeals by special leave from the
judgments and orders dated June 25, 1965 and February 20, 1967 of the Gujarat
High Court in Cr. Appeals Nos. 828 of 1965 etc.
Urmila Kapoor and S. P. Nayar, for the
V. K. Sanghi, for the respondents.
The Judgment of the Court was delivered by
Hegde, J. These appeals arise from two complaints field by the Charity
Commissioner, State of Gujarat under s. 35(1) read with s. 66 of the Bombay
Public Trust Act, 1950 (which will hereinafter be referred to as the Act). In
those complaints 10 accused were proceeded against. It was said that they were
the trustees of two trusts known as "Shree Swaminarayan Mandir" and
"Narayan Mandir". The 1st accused in both those complaints was the
Acharya, the 10th was said to be the Mahant and the other accused the
associated trustees at the relevant time. It was said that all these trustees
were appointed under two different schemes framed by the High Court of Bombay.
The trial court convicted the accused but in appeal the High Court of Gujarat
acquitted all of them. It held that there is no proof to show that accused 2 to
10 were the trustees of the institutions at the time the alleged offence took
place. It allowed the appeal of the 1st accused on the ground that the
prosecution has failed to prove the required mens rea on his part. The State of
Gujarat and the Charity Commissioner have brought these appeals after obtaining
special leave from this Court.
In the first complaint the allegation is that
the 1st accused withdrew from the trust funds in Samvat year 2014 a sum of Rs.
30277/53 for meeting his income-tax liability and that he reimbursed that
amount only in Samvat year 2018.
The allegation against the other accused is
that they allowed the 1st accused to utilise that amount in contravention of
the law. In the second complaint the allegation is that the 1st accused withdrew
a sum of Rs.
40653/56 P. in the Samvat year 2015 again for
meeting income-tax liability and that he reimbursed that amount also in the
Samvat year 2018 and that the other accused connived at the contravention of
the law by the 1st accused.
Accused 2 to 10 pleaded that they were not
the trustees of the institutions concerned during the Samvat years 2014 and
2015 and nor were they aware of the withdrawals and as such, they are not
guilty of any offence. The 1st accused admitted the withdrawals mentioned in
the complaints but his case was that the 559 withdrawals were made from his
Hathu Khata, a Khata built up by him and his ancestors and he has put back that
amount., So far as accused 2 to 10 are concerned there is absolutely no
evidence against them. The only witness examined on be-half of the complainant
namely the Legal Advisor of the Charity Commissioner did not give any evidence
No material was placed before the court to
show that they were the trustees of the trusts in question during the Samvat
years 2014 and 2015. This is not a case where a trustee has failed to deposit
the amounts in his hands but is a case of unauthorised withdrawals. There is no
evidence to show that accused 2 to 10 knew about those withdrawals even if we assume
that they were the trustees during the Samvat years 2014 and 2015. Hence the
case against them must necessarily fail.
Now coming to accused No. 1 his case is that
he withdrew the amount from his Hathu Khata which Khata according. to him is
his private Khata. There is no contra evidence. The complainant's witness
admitted during his cross-examination that accused No. 1 kept a huge sum with
the trust and that no interest was given to him in respect of that amount. It
is not possible to come to the conclusion, on the basis of the evidence of P.W.
I that accused No. 1 had withdrawn any amount belonging to the trust. In order
to prove the case put forward in the complaints, reliance was sought to be
placed on a letter said have been sent by the accused to the Charity
Commissioner. The original letter was not produced;
only an alleged copy of the same was put on
record. No witness has proved the letter said to have been written by accused
No. 1, nor is there any evidence to show that the copy produced is a true copy
of the letter said to have been sent by accused No. 1. We are asked to infer
the guilt of the accused No. 1 on the basis of the statement made by him under
s. 342, Cr.P.C. We cannot split that statement into various parts and accept a
portion and reject the rest. We have to either accept that statement as a whole
or not rely on it at all. In his statement the accused pleaded that he was not
guilty and if his statement is taken as a whole, it does not show that he was
guilty of any offence.
Our above conclusion is sufficient to dispose
of these appeals but as the High Court has elaborately gone into the question
whether the requirement of mens rea is a necessary ingredientof s. 3 5 (1), we
shall proceed to examine that question.
The High Court primarily addressed itself to
the question whether the court should read into s. 35 of the Act, the
requirements of mens rea. Section 35(1) reads :
"Where the trust property consists of
money and cannot be applied immediately or at any early date to 560 the purposes
of the public trust the trustee shall be bound (notwithstanding any direction
contained in the instrument of the trust) to deposit the money in any Scheduled
bank as defined in the Reserve Bank of India Act, 1934, in the Postal Savings
Bank or in a Cooperative bank approved by the State Government for the purpose
or to invest it in public securities :
Provided that such money may be invested in
the first mortgage of immovable property situate in (any part of India) if the
property is not leasehold for a term of years and the value of the property
exceeds by one-half the mortgage money :
Provided further that the Charity
Commissioner may by general or special order permit the trustee of any public
trust or classes of such trusts to invest the money in any other manner."
Assuming that the requirement of mens rea is a necessary ingredient of the
offence under s. 35(1) and further that the facts pleaded in the complaint are
correct then there can be hardly any difficulty in coming to the conclusion
that the accused had the required intention. He is said to have withdrawn
monies from the trust fund and utilised the same for his private purpose.
It may be noted that the requirement of S.
35(1) that a trustee should invest in proper securities the trust monies not
required for immediate use merely emphasises an obvious duty of the trustee.
Section 35(1) imposes certain penalty on the trustee if he fails to do his
duty. The purpose of S. 35(1) is to safeguard the trust funds and also to guard
against its misappropriation and misapplication. The Trust Act as well as S.
35(1) imposes a duty on the trustee. The language of the provision shows that
the liability imposed on the trustee is absolute. The provision is regulatory
provision enacted in public interest. For the contravention of S. 35(1) only a
fine can be imposed and the punishment does not carry with it any stigma.
The question whether a crime can be said to
have been committed without the necessary mens rea has led to considerable
controversy. The broad principles accepted by courts in this country as well as
in England are : Where an offence is created by a statute, however
comprehensive and unqualified the language of the statute, it is usually
understood as silently requiring. that the element of mens rea should be
imported into the definition of the crime, unless a contrary intention is
expressed or 5 6 1 implied. In other words, the plain words of the statute are
read subject to a presumption, which may be rebutted, that the general rule of
law that no crime can be committed unless there is mens rea has not been ousted
by the particular enactment. The mens rea means some blameworthy mental
condition, whether constituted by knowledge or intention or otherwise. But this
rule has several exceptions, as observed by Lord Evershed in Lim Chin Aik v. The
"Where the subject matter of the statute
is the regulation for the public welfare of a particular activity-statutes
regulating the sale of food and drink are to be found among the earliest
examples-it can be and frequently has been inferred that the legislature
intended that such activities should be carried out under conditions of strict
liability. The presumption is that the statute or statutory instrument can be
effectively enforced only if those in charge of the relevant activities are
made responsible for seeing that they are complied with. When such a
presumption is to be inferred, it displaces the ordinary presumption of mens
rea." As long back as 1895. Wright J. observed in Sherras v.De Rutzen.
"There is a presumption that mans rea,
an evil intention of knowledge of the wrongfulness of the act, is an essential
ingredient in every offence; but that presumption is liable to be displaced
either by the words of the statute creating the offence or by the subject matter
with which it deals, and both must be considered." It is further observed
therein that the principal classes of exceptions may perhaps be reduced to
three. First, is a class of acts which are not criminal in any real sense, but
are acts which in the public interest prohibited under a penalty. Another class
comprehends some, and perhaps all public nuisances. Lastly, there may be cases
in which, although the proceeding is criminal in form, it is really only a
summary mode of enforcing a civil right. But, except in such cases as these,
there must in general be guilty knowledge on the part of the defendant, or of
some on whom he has put in his place to act for him, generally, or in the
particular matter, in order to constitute an offence. The present case, in our
opinion, falls within the first category mentioned above-Section 35(1) deals with
a quasicriminal act.
(1)  A.C. 160.
(2) 1. Q. B. 918 5 62 This Court in
Ravule Hariprasada Rao v. The State(1) ruled that unless a statute either
clearly or by necessary implication 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.
The same view was reiterated by this ,Court
in State of Maharashtra v. Mayer Hans George (2) . But in both those cases this
Court recognized that the language of a provision either plainly or by
necessary implication can rule out the application of that presumption. Further
the Court may decline to draw that presumption taking into consideration the
purpose intended to be served by that provision. In fact in Ravula Harprasada
Rao's case(1) this Court held that the ,liability imposed under S. 27(A) of the
Motor Spirit Rationing Order 1941 is an absolute liability. The law on this
point was ,elaborately discussed by the House of Lords in Sweet v. Parsley(3).
Therein it was laid down that it is a general principle of construction of any
enactment which creates a criminal offence that, ,even where the words used to
describe the prohibited conduct would not in any other context connote the
necessity for any particular mental element they are nevertheless to be read as
subject to the implication that a necessary element in the offence is the
absence of a belief, held honestly and on reasonable grounds in the existence
of a facts which, if true, would make 'the act innocent. In the course of his
speech Lord Reid observed after referring to the well known observations of
Wright J. to which we have already made reference.
"It does not in the least follow that
when one is dealing with a truly criminal act it is sufficient merely to have
regard to the subject matter of the enactment. One must put oneself in the
position of a legislator. It has long been the practice to recognise absolute
offences in this class of quasicriminal acts, and one can safely assume that,
when Parliament is passing new legislation dealing with thise class of
offences, itse silence as to mens rea means that the old practice is to apply.
But when one comes to acts a truly criminal character, it appears to me that
there are at least two other factors which any reasonable legislator would have
in mind. In the first place a stigma still attaches to any person convicted of
a truly criminal offence, and the more serious or more disgraceful the offence
are greater the stigma. So he would have to consider whether, in a case of this
gravity, the public interest really requires than an innocent person should be
prevented from pro(1)  S. C. R. 322. (2)  1 S.C.R. 123.
(3)  2 W. I-R. 470.
5 63 ving his innocence in order that fewer guilty
men may escape." Section 35(1) of the Act creates a quasi-criminal
It is a regulatory provision. It is enacted
with a view to safeguard the interest of the public regarding trust money.
The offence in question is punishable only
with fine. The conviction under that does not carry any stigma. The language of
the provision appears to make its contravention an absolute liability. Under
these circumstances, we think the offence mentioned in that section is an
Consequently we cannot read into it the
requirement of mens rea.
For the reasons mentioned above these appeals
fail and they are dismissed.
Y.P. Appeal dismissed.